
    George C. Glassford, Resp’t, v. Alfred C. Lewis et al., App’lts.
    
      {Supreme Oourt, General Term, Fourth Depa/rtment,
    
    
      Filed December 7, 1894.)
    
    1. New trial—Discretion.
    Motions for new trials are addressed to the discretion of the court, whether based upon the weight of evidence, surprise, or newly discovered evidence, or the fact that the party has been deprived of his evidence by accident or other like grounds.
    2. Same—Newly discovered evidence.
    Where the new evidence was discovered since the trial, could not have been obtained on the former trial by reasonable diligence, is material, not merely cumulative, and of a character that would probably change the result, it is sufficient to authorize the court, in its discretion, to grant an order for a new trial.
    Appeal from an order granting a new trial.
    
      W. II. Johnson, for app’lts; B. M. Townsend and Carver, Deyo & Jenkins, for resp’t.
   Martin, J.

The motion for a new trial, which resulted in the order appealed from, was made upon the ground of newly discovered evidence, and because the verdict was contrary to the evidence. A careful reading of the testimony contained in the appeal book discloses that the special term may well have granted the plaintiff’s motion upon the ground that the verdict was against the weight of evidence. It was said by Allen, J., in Barrett v. Third Av. R. R. Co., 45 N. Y. 632: “Motions to set aside verdicts as contrary to evidence, as well as motions for a new trial upon the ground of newly discovered evidence, are not governed by any well defined rules, but depend, in a great degree, upon the , peculiar circumstances of each case. They are addressed to the sound discretion of the court; and whether they should be granted or refused involves the inquiry whether substantial justice has been done, the court having in view solely the attainment of that end.”

The same doctrine is held in McKeever v. Weyer, 11 Wkly. Dig. 258; Oberlie v. Bushwick Ave. R. R. Co., 6 St. Rep. 771; Bannon v. McGrane, 45 N. Y. Supr. Ct. 517; Macy v. Wheeler, 30 N. Y. 231, and Standard Oil Co. v. Amazon, 79 id. 506. In the Bannon Case it was said: “ It is at all times a grave question for an appellate court to reverse, on the ground of error, an order made by the trial judge setting aside the verdict as against the weight of evidence.”

In Young v. Stone, 77 Hun, 395; 60 St. Rep. 419, after reviewing these cases, this court said: “ We think a trial judge is invested with power to set aside a verdict and grant a new trial on the ground that the verdict is against the weight of evidence, or because the damages are excessive or insufficient, or when, for any other reason, substantial justice would be promoted thereby. This power we think an important one, and one that ought, perhaps, to be more often exercised by trial courts for the proper protection of the rights and interests of litigants.”

Applying these rules, and considering the proceedings and evidence had and taken before the trial court, we are led to the conclusion that the order appealed from should not be reversed, as the court was justified in granting a new trial on the ground that the verdict was against the weight of evidence.

We are also of the opinion that the court was justified in granting the order upon the ground of newly discovered evidence. The defendants’ claim that the motion should have been denied because of the' plaintiff’s loches in making it should not, we think, be sustained. An examination of the affidavits read upon the hearing of this motion renders it apparent that the special term may have found that the loches of which the defendants complain was occasioned as much or more by their delay than by that of the plaintiff. Moreover, the court may also have found upon the papers before it that the defendants expressly waived the question of loches in consideration of the plaintiff’s consent to a postponement of the motion. If the affidavit of the plaintiff’s attorney was relied upon, the court, as well as the counsel for the defendants, may have thought that he was not “in a position to raise the question of loches.” This leaves for consideration the question whether the papers upon which the motion was granted were sufficient to authorize the court to grant"a new trial upon the ground of newly-discovered evidence. The general rules applicable to such a motion are well settled. It must appear that the-evidence has been discovered since the trial; that it could not have been obtained upon the former trial by the exercise of reasonable diligence; that it is material to.the issue, and goes to the merits of the case; that it is not merely cumulative, and that its character is such that it would probably have changed the result. When these facts appear, and the court is satisfied that the ends of justice will be promoted by allowing the moving party an opportunity to present the newly-discovered evidence, the motion will be granted. Grah. & W. New Trials, 642, 1085, 1086; Powell v. Jones, 42 Barb. 24, 29; Bonynge v. Waterbury, 12 Hun, 534; Sistare v. Olcott, 22 St. Rep. 564; 5 N. Y. Supp. 114; Darbee v. Elwood, 2 Hun, 599. Motions for new trials are addressed to the discretion of the court, whether based upon the weight of evidence, surprise or newly-discovered evidence, or the fact that the party has been deprived of his evidence by accident, or other like grounds; and in modern practice they are liberally granted in the furtherance of justice. Platt v. Munroe, 34 Barb. 291; Tyler v. Hoornbeck, 48 id. 197. We think the motion papers sufficiently show that the new evidence was discovered since the trial, could not have been obtained on the former trial by reasonable diligence, that it is material, not merely cumulative, of a character that would probably change the result, and sufficient to authorize the court, in its discretion, to grant an order for a new trial on that ground. The facts in this case are much stronger than in Holmes v. Roper, 32 St. Rep. 470; 10 N. Y. Supp. 284, where an order denying such a motion was reversed, and a new trial granted upon that ground.

Order affirmed, with costs.

All concur.  