
    Charles J. Hartman, Resp’t, v. The Morning Journal Association, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed June 6, 1892.)
    
    1. New trial—Surprise
    A defendant in an action for libel cannot claim to be surprised by evidence as to the falsity of a statement in one of the articles complained of, .vliere it has alleged that such article was true in each and every particular, and thus tendered the issue of the truthfulness of such statement.
    3. Same—Newly discovered evidence.
    The testimony of a witness known to the defendant before the trial and whom he could not find to subpoena is not newly discovered evidence.
    Appeal from an order made at special term denying defendant’s motion for a new trial upon the ground of newly discovered evidence.
    
      John B. Dos Bassos, for def’t; Louis J. Grant, for resp’t.
   Bookstaver, J.

In the view we take of this case, it is no necessary to determine whether Beers v. Root, 9 Johns., 264, is now the law of this State. The motion was made under § 1002 of the Code of Civil Procedure for matters outside the record. The principal grounds for such motions have • been generally regarded as three, to wit, newly discovered evidence, surprise and misconduct of the jury. The latter ground is not raised by the moving papers, as no misconduct is charged. It must therefore rest upon surprise or newly discovered evidence. We do not think it can be successfully based upon the ground of surprise, for in the complaint and accompanying schedules it was expressly set forth that the plaintiff had been libelled by the statement in one of the articles published in defendant’s paper as follows: “ Mr. Hartman claims that he has not had a cent out of it; there is a stack of his I. O. U’s in the office a foot high where he has taken the money collected and put it in his pocket, and put an L O. 17. in its place.” The seventh paragraph of the answer in substance alleged that the schedules attached to the complaint and marked A, B and 0, in the latter of which this is contained, are and each of them was, at the time of the publication of the same, true in each and every particular. The defendant itself, therefore, tendered the issue of the truthfulness of this statement when it served its answer, and it should have anticipated that the plaintiff upon the trial would have given testimony as to so grave a charge, and had there been an intention to justify it, it ought to have prepared its testimony in order to do so. The papers show conclusively that the statement in regard to this matter was obtained by one of defendant’s reporters from one of the very persons whom it is now claimed has only just been secured as a witness; but it knew from the beginning of the action that he and the other witnesses now produced would be needed; the defendant by its reporters or others must have been in communication with James, otherwise-known as Boyce, at the time that the alleged libel was prepared, and it was their duty to have known his whereabouts at all timesafterwards and to have kept him within reach, or if through any inadvertance this was not done, then they ought when the case was called for trial, to have stated their inability to procure their witnesses and asked an adjournment for that purpose, instead of which the action was on the day calendar for October 1st and each succeeding day until the 9th of that month, when the trial began and defendant’s counsel answered “ ready ” each day, and made no request whatever for an adjournment for any cause, nor did he make such request after the trial was commenced and during its continuance.

For the reasons before stated it cannot be successfully urged that the matter was newly discovered evidence. The testimony of a witness known to the defendant before the trial and whom he could not find to subpoena, is not newly discovered evidence. Ranous v. Trageser, 1 W. Dig., 25; Hernstein v. Fleming, id. 401; Chamberlain v. Lindsay, 1 Hun, 231. The evidence in question must, we think, or ought to have been, known to the defendant’s officers before, the trial; they ought to have been prepared to have produced the witnesses to give it. Such evidence is not newly discovered. Hooker v. Terpening, 29 St. Rep., 818. It is not sufficient to say that they did not know that one of the witnesses upon whom they relied was going under an assumed name; they knew him personally, derived a large portion of their information from him, and it was their duty to have known where the author of such grave charges could be had when needed; Or, as before said, if they lost track of him, then they should have applied for an adjournment It appears to us that the defendant, voluntarily took the hazard of a trial without witnesses which it knew of and should have had, and after being defeated, it would be putting a premium upon litigation to grant a new trial on the-grounds urged.

The order should, therefore, be affirmed, with costs.

Bischoff, J., concurs.  