
    [No. 11341.
    Department Two.
    —April 27,1888.]
    CRYSTAL LAKE ICE COMPANY, Respondent, v. THOMAS McAULAY, Appellant.
    New Trial — Conflict of Evidence.—Where the evidence is substantially conflicting, a new trial will not be granted on the ground that the decision is not justified by the evidence.
    Id. —Newly Discovered Evidence. —Newly discovered evidence which is merely cumulative will not warrant a new trial.
    Appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order refusing a new trial.
    The facts are stated in the opinion.
    
      
      II. A. Powell, for Appellant.
    
      Van Ness & Roche, for Respondent.
   Belcher, C. C.

This is an action to recover the value of ice, alleged to have been sold and delivered by plaintiff to defendant. The court below gave judgment for the plaintiff, from which, and from an order denying a new trial, defendant has appealed.

No exceptions were taken at the trial, and no errors of law were assigned. The new trial was asked on the ground of the insufficiency of the evidence to justify the decision, and the further ground of newly discovered evidence.

It is admitted for the appellant that there was some evidence to support the findings, but it is claimed that a clear preponderance of it was against them.

After carefully going over the record, we are of the opinion that there was a substantial conflict in the testimony, and that the well-settled rule in such cases must be followed.

In regard to the evidence alleged to be newly discovered, it is enough to say that it presents nothing new. It contradicts the plaintiff’s testimony in some respects, and is merely cumulative. Beside, it was squarely contradicted by a counter-affidavit. Applications for new trial on this ground are addressed to the discretion of the trial court, and we are unable to see that that discretion was in any way abused.

In our opinion the judgment and order should be affirmed.

Foote, 0., and Hayne, 0., concurred.

The Court.

For the reasons given in the foregoing opinion, the judgment and order are affirmed.  