
    Bernard Kat et al., App’lts, v. Catharine Atfield, Adm’rx, Resp’t.
    Appeal from, order denying motion for a new trial.
    
      Henry Daily, Jr., for app’lts; Edward W. S. Johnson, for resp’t.
   Fitzsimons, J.

In the event of the payment by appellants’ counsel of the costs imposed by the order of Mr. Justice McCarthy and the general term reversing said order, I think that the interests of justice require that a new trial should be had herein.

It appears that the plaintiff diligently searched for and was unable to find the delivery receipts alleged to have been signed by Atfield until after the trial.

This is, in a sense, newly discovered evidence, particularly under the circumstances of this case; the same thing may be said of witnesses whose testimony plaintiff was unable to procure at the trial.

The fact that they refuse to make affidavits setting forth their knowledge is shown, and, therefore, it is impossible to submit them because they refuse to make the same under such circumstances.

It would be unjust to deny a new trial for the reason that such affidavits are not submitted to us.

We do not believe that the appellants suffered any surprise at the trial, except such as is usually experienced by counsel and their clients upon the rendition of an adverse verdict.

Order appealed from reversed upon condition that the general term costs, and all motion costs imposed and still unpaid, be paid within five days after entry of order herein.

If these conditions are not satisfactory and not complied with, then said order is affirmed, with costs.

Ehrlich, Ch. J., concurs in result.

Newburger, J.,

(dissenting).—I cannot concur with my associates in the conclusion they arrived at.

This court has heretofore determined, Whitney v. Saxe, 18 St. Rep., 1020, that a new trial will not be granted unless the new evidence has come to the knowledge of the applicant since the trial, and that it was not owing to the want of due diligence'that it was not sooner discovered.

An examination of the record clearly shows that the plaintiff has not brought himself within the rule laid down in the foregoing case.

The order appealed from should be affirmed, with costs.

Order reversed.  