
    The People, App’lt, v. James H. Bean, Resp’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed July 6, 1895.)
    
    Appeal—Pekjuby.
    A judgment, founded upon perjured evidence, will not be permitted to stand.
    Appeal from a judgment entered on a verdict in favor of defendant, and from an order denying a motion for a new trial, made on the minutes.
    
      Cantwell & Cantwell {William P. Cantwell, of counsel), for the People; Samuel & Beman {Charles A. Burlce, of counsel), for resp’t.
   Herrick, J.

Where the court can see that a verdict has been obtained by transparent prejury, I do not think it should permit such’verdict to stand. It is true that in this case it is extremely doubtful whether, upon the defendant’s own case, there was sufficient evidence to warrant a verdict in his favor, yet I am inclined to think, as did the trial court, that there was some slight evidence upon which the jury might find the nature of the article in question. The weakness of the plaintiff’s case arises from the palpable prejury of the witness Miller. The fact that lie was a hostile witness, although sworn on behalf of the plaintiff, and the evident falsity of his testimony, might well be taken into consideration in weighing those portions of his evidence which slightly tend to prove the plaintiff’s case. The equally palpable perjury of Perkins, the only witness sworn for the defendant, exclusive of the defendant himself, rather gives weight to, than detracts from, the slight case made by the plaintiff's evidence. A judgment founded upon such evidence should not be permitted to stand. The plaintiff should be given, if it- so elects, another opportunity to establish its came of action, and the witnesses a chance to repent and tell the truth, if that be possible.

Judgment reversed, and a new trial granted; costs to abide the event.

Mayham,-P. J., concurs in result; Putnam, J., not acting.  