
    EVANS v. UNITED STATES LIFE INSURANCE COMPANY.
    N. Y. Supreme Court, General Term, Second Department;
    
    December, 1887.
    1. New trial; laches.] A, motion for a new trial made by an assignee of the cause of action, on the ground of newly-diseovere'd evidence, should be denied, if made after a great lapse of time—in this case eight years—after the facts were known to the assignor.
    2. Same; motion for, after judgment absolute by court of appeals.] A judgment of the court of appeals giving judgment absolute upon the usual stipulation on an appeal from an order of the General Term granting a new trial, precludes a subsequent motion for a new trial on the ground of newly-discovered evidence, and equally precluded a motion by an assignee of the cause of action to be substituted as plaintiff, for the purpose of making such motion.*
    Appeal from an order of the special term of the second district, substituting "William W. Hebbard as plaintiff, granting him leave to serve an amended complaint, and opening judgments upon terms.
    This action was commenced in 1874 by William Evans against The United States Life Insurance Company to recover the amount due upon a life policy issued to Samuel W. Leddell upon the life of Charles A. Starr.
    Starr died in 1872, after which Leddell assigned his claim under the policy to the plaintiff.
    The defense to the action was, that Starr violated the policy by living in places contrary to its terms.
    The issues were referred to a referee to hear and determine, who reported in favor of the plaintiff for the full amount of liis claim, and from the judgment entered thereon, the defendant appealed to the general term, where the judgment was reversed and a new trial ordered.
    
      ♦The stipulation to submit to judgment absolute, seems to take the case out of the general rule that affirmance by the appellate court does not necessarily deprive the court below of its power to open the judgment, and allow an amendment. 1 Abb. New Fr. 130, note 5.
    
      From this judgment the plaintiff appealed to the court of appeals, and made the usual stipulation for judgment absolute in case of affirmance of the order, and that court •affirmed the order and rendered judgment absolute against the plaintiff upon the stipulation.
    The defendant then entered judgment for costs upon the remittitur, a part of which remained unpaid at the time •of this proceeding.
    In February, 1878, William W. Hebbard, as assignee of Evans, commenced an action upon this policy. The defendant answered, setting up, among other defenses, the judgment as a bar.
    Shortly after issue was joined, in this last action, the 'defendant obtained-an order staying all the proceedings on the part of Hebbard until the costs of the former action was paid, from which an appeal was taken to the general term, which resulted in an affirmance.
    Nothing further was done in the matter until November, 1886, when Hebbard moved for an order substituting himself as plaintiff in the original action in place of Evans, and "vacating and opening the judgment of the court of appeals •made upon the stipulation for judgment absolute, and permitting the service of an amended complaint.
    The motion was made upon the ground of newly-discovered evidence, and was granted by the special term, which imposed the following terms : -
    1. The payment of all costs due in the action, brought by Evans, with interest.
    2. The discontinuance of the action brought by Heb-bard in 1878.
    3. Payment of the costs in that action.
    4. The stipulation that the testimony adduced on the trial of the action brought by Evans might be had and used by defendant on the trial of the issues to be raised by the defendant’s answer to Hebbard’s proposed amended complaint.
    From this order the defendant appeals to the general term.
    
      William Jay (Jay, Candler & Brush, attorneys) for the
    appellant.—I. The judgment which has been vacated by the order appealed from, is not within the category of judgments which, in the discretion of the court, may be opened on the ground of newly-discovered evidence. Besting, as it does, upon a stipulation voluntarily entered into' by the plaintiff in the action, neither the stipulation itself, nor the judgment which rests upon it, can be attacked upon a mere motion on affidavits (Mackay v. Lewis, 73 N. Y. 382; Godfrey v. Moser, 66 Id. 250; Hiscock v. Harris, 80 Id. 402; Arnold v. Robertson, 50 Id. 683; Baylies on New Tr. & App. 246.)
    II. This action being in judgment, and having been so> for upwards of ten years, there is no provision of law and no rule of practice by which anybody can procure himself to be substituted as plaintiff therein (Davis v. Mayor, 14 N. Y. 506; Milk Pan Co. v. Remington Agricultural Works, 14 Weekly Dig. 312).
    III. In all cases where a new • trial is sought on the ground of newly-discovered evidence, the courts insist that the motion shall be made with the utmost diligence. A delay of nearly nine years having occurred since the discovery of the evidence, the relief sought must be refused (Woolf v. Jacobs, 45 How. Pr. 403; Coke on Litt. 303).
    . IV; The learned justice at special term erred in refusing to entertain the preliminary objection urged by the appellant’s counsel, to wit, that neither the plaintiff Evans, nor his assignee Hebbard, could be heard to make any motion or take any steps whatsoever in this action so long as the balance of costs above referred to remains unpaid (Barton v. Speis, 73 N. Y. 133; Cuyler v. Vanderwerck, 1 Johns. Cas. 247; Perkins v. Hinman, 19 Johns. 237; Taylor v. Vandervoort, 9 Wend. 449; Hebbard v. U. S. Life Ins. Co., 8 Weekly Dig. 272).
    
      Henry C. Willcox, for the respondent, cited :
    (I.) As to the non-appealability of the order: N. Y. Ice Co. v. Northwestern Ins. Co., 23 N. Y. 357; Hatch v. Central Bk., 78 Id. 487; Lawrence v. Farley, 73 Id. 187. (II.) As to the power of the court to grant the order from which defendant appeals: Eighmie v. Taylor, 39 Hun, 366; Hatch v. Central Bk., 78 N. Y. 487; Berdell v. Parkhurst, 25 Weekly Dig. 340; Crooks v. Maxwell, 6 Blatchf. 468 ; N. Y. Ice Co. v. Northwestern Ins. Co., 23 N. Y. 361; Mechanics’ Bk. v. Minthorne, 19 Johns. 244; Blydenburg v. Johnson, 9 Abb. Pr. N. S. 459; Cunliff v. Delaware & Hudson Canal Co., 4 N. Y. State Rep. 775. (III.) As to the objection made by defendant that the motion should not have been granted, because of plaintiff’s delay: Metropolitan R. R. Co. v. Manhattan R. R. Co., 14 Abb. N. C. 103; Cunliff v. Delaware & Hudson Canal Co., 4 N. Y. State Rep. 775; Monroe v. Delavan, 26 Barb. 22; Boardman v. Lake Shore R. R. Co., 84 N. Y. 183; Platt v. Platt, 58 Id. 646. (IV.) As to the proposition that because in the action by him brought, Evans gave the usual stipulation on appeal to the court of appeals, that judgment absolute should be rendered in case of affirmance, he is barred from pleading new facts arising out of the same transaction, but constituting a different cause of action : Arnold v. Robertson, 50 N. Y. 683; Godfrey v. Moser, 66 Id. 250; Mackay v. Lewis, 73 Id. 382; Hiscock v. Harris, 80 Id. 402; Belden v. State, 103 Id. 1; People v. Dennison, 84 Id. 272; Hatch v. Central Bk., 78 Id. 487. (V.) As to the proposition that the respondent did not make out a case for a new trial on the ground of newly-discovered evidence, and, therefore, the order should not have been granted: N. Y. Ice Co. v. Northwestern Ins. Co., 23 N. Y. 357; Lawrence v. Farley, 73 Id. 187: Hatch v. Central Bk., 78 Id. 487.
   'Barnard, P.

If this application is to be subjected to the rules which govern motions for new trials upon the .ground of newly-discovered evidence, it should ■ be denied. Final judgment was entered some ten years ago, before the ■application was made, and nearly nine years after that the newly-discovered evidence was known to the plaintiff’s assignor. Again, the papers are too indefinite in the statement of newly-discovered evidence.

Generally the allegation is that some of the officers and employees of the defendant ” informed Edwin Wilcox that the person whose life was insured went South, further than was permitted by the policy, upon the understanding and agreement with the defendant that he might remain ■away permanently ” upon paying the usual extra premiums. No name is given of the employee or officer. No time is stated. No conversation is given. Upon such an affidavit the defendant can take no issue upon the facts.

No excuse is given for the long delay, and the rule is rigid requiring diligence to obtain new trials. Eight years is too long a period for a discovery of the evidence.

There is another objection to the new trial. Charles A. Starr had a policy on his life for $10,000. This was assigned to Samuel W. Liddell to secure a debt of $6,500 from Starr to Liddell. In October, 1869, the policy was surrendered and a new one taken to Liddell on Starr’s life for $6,500. This policy established a territory beyond which Starr should not go in the summer. Starr went and died in the prohibited district. Liddell assigned his policy of insurance to the present plaintiff. Evans sued upon it and got judgment. This was reversed, and a new trial given in the action by the General Term upon appeal, and Evans thereupon appealed to the court of appeals, and gave a stipulation that if the judgment was affirmed a judgment absolute should be rendered against the appellant. This stipulation was in accordance with law. The appeal could not be made effectual without this stipulation. The court of appeals affirmed the judgment and gave a judgment absolute against the defendant upon the stipulation.

The court of appeals have given effect to such judgment in several cases.

In Godfrey v. Moser, 66 N. Y. 250, and after an adverse-decision, the court stated that it was the statute which produced the result and not the court, and there was no legal mode of relief. The case was a hard one, because the new-trial was given because part of the judgment only was modified. Under the stipulation the whole case went adversely to the plaintiff appellant.

In Mackay v. Lewis, 73 N. Y. 382, the court of appeals, again asserted that after an adverse decision it could not. relieve the appellant from his stipulation.

In Hiscock v. Harris, 80 N. Y. 402, where a plaintiff" got judgment in an action where the defendant had set up a. counterclaim, the court held that judgment must be absolute-against the appellants upon the whole matter and right of controversy in the action, and the court calls attention to-, the impolitic use of the right of appeal from orders granting-new trials, and cite many cases in support of the far reaching-nature of the stipulation in case of failure in the court of" appeals.

In the present action judgment absolute was ordered for-the defendant upon the stipulation. Upon that judgment a., remittitur was sent to this court, and an absolute judgment was made the judgment of this court.

After that judgment was made, which was made -February 29, 1876, Evans had nothing to convey to Hebbard, who now appears to be substituted upon the conveyance of the same policy of insurance by Evans to him. The stipulation covered the whole case. The policy was., destroyed by it.

The order should be reversed and motion denied with, costs.

Pratt, J., concurred.

Order reversed.  