
    Andrew Popadinec, Respondent, v. Manhattan Railway Company, Appellant.
    Sécond Department,
    December, 1905.
    New trial—when granted on newly-discovered evidence—same injury claimed by plaintiff in former trial.
    When the plaintiff has had a recovery for damages because of permanent injury to his eyesight received through the negligence of the defendant, and it is shown by affidavit, on a motion for a new trial on the ground of newly-discovered evidence that since the accident the plaintiff has worked at different places without apparent difficulty from defective eyesight,, and in a former action, against-another defendant for personal injuries , he and his physician had testified “that his sight was permanently injured,” the defendant showing due diligence and that the knowledge of this evidence was brought lo his attention after thetrial, the new trial should be granted. It should not be refused because the complaint in such former action did not set out such injury, if counsel, who was present, makes affidavit that he will testify that plaintiff then testified that his eyesight was permanently injured.
    Hirschberg, P. J., and Hooker, J., dissented.
    Appeal by the defendant, the Manhattan Bailway Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Queens on the 13th day of May, 1905, denying the defendant’s motion for a new trial on the ground of newly-discovered evidence.
    
      Alfred A. Gardner [Charles A. Gardiner with him on the brief], for the appellant.
    
      Ira B. Wheeler, for the respondent.
   Miller, J.:

Defendant appeals from an order denying a motion for a new trial on the ground of newly-discovered evidence relating to the question of damages, one of the important questions litigated on the trial. The plaintiff claimed to have received permanent injuries to his eyesight and testified that after the accident resulting in such injuries he had been unable to perform any work. The alleged newly-discovered evidence consists of evidence to the effect that after the accident the plaintiff worked at different places without apparent difficulty from defective eyesight and that in a previous action brought by plaintiff in the City Court against another defendant for personal injuries, he testified that his eyesight was permanently injured. It further appears that knowledge of this evidence was brought to the defendant after the trial of this action, and affidavits are produced tending to show due diligence on the part of the defendant in the preparation of the case for trial. The learned justice before whom the case was tried, on denying the motion for a new trial, delivered an opinion in which he said: If the proof substantiated this claim (referring to the claim that the plaintiff had testified in the previous suit to the permanent injuries to his eyesight), I would have no hesitation in setting aside the verdict, but it does not substantiate it.” This conclusion was evidently based upon the fact that the complaint in said former action did not allege an injury to the eyesight, although it did allege an injury to the head and face from burning. We think the learned justice did not give due weight to the affidavit of the attorney who says he was present at the trial of said former action, and that it was testified to by the plaintiff and'his physician that his hair was singed off, that 'he lost his eyebrows, that his sight was permanently in jured, if not destroyed,” and the affiant says, he will SO’ testify upon a, retrial of this action. It must be manifest that- this ’evidence would' be likely to change the result.' The defendant has brought, itself -within the rules prescribing the conditions upon which new trials for newly-discovered evidence will be granted, and I, therefore, recommend, that the order be reversed with costs, and the motion granted on the usual terms..

Bartlett and Jenks, JJ., concurred; Hirsóhberg, P. J., and Hooker, J., dissented.

Order denying motion for new trial reversed, with costs, and motion granted upon payment by the appellant, within twenty days, of the costs of the trial and all disbursements in the action to date, . together with the cost of this appeal;' if this condition is not complied with, judgment and order affirmed, with costs.  