
    Antonia Pospisil, as Administratrix, etc., of Joseph Pospisil, Deceased, Respondent, v. Peter F. Kane and Robert J. Wright, Appellants.
    
      Motion for a new trial for surprise and newly-discovered evidence — not granted merely to allow a retrial of the issues—what surprise will not justify it — laches in discovering the new evidence.
    
    An action to recover damages for the negligent killing of the plaintiff's intestate was tried and resulted in a verdict for the plaintiff for $215, which was set aside by consent. Upon the second trial the plaintiff obtained a verdict for $2,000, which was sustained by the Appellate Division. Thereafter the defendants retained another attorney who, after reading a copy of the case upon appeal, declared that perjury had been committed. The defendants thereupon instructed the new attorney to investigate the character of the plaintiff’s witnesses. As a result of such investigation the attorney claimed that he had discovered certain persons who would support the version given by the defendants’ witnesses as to the cause of the accident, or would impeach the character of the plaintiff’s witnesses. He thereupon made a motion for a new trial of the action on the ground of surprise and newly-discovered evidence. The alleged surprise consisted of the fact that a witness, who was not called on the first trial, was called on the second trial and gave important evidence, which the defendants did not anticipate.
    
      Held, that the motion should be denied;
    That it was an attempt to reopen and retry issues that had been twice tried, and that the defendants’ want of diligence in discovering the alleged newly-discovered evidence was fatal to the application;
    That the alleged surprise was not sufficient to warrant the granting of a new trial.
    Appeal by the defendants, Peter F. Kane and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 11th day of April, 1902, denying the defendants’ motion to set aside and vacate a judgment theretofore entered in the action and for a new trial on the ground of surprise and newly-discovered evidence.
    
      II. D. Luce, for the appellants.
    
      Paul Jones, for the respondent.
   Patterson, J.:

This is an appeal from an order denying a motion for a new trial made on the ground of surprise and newly-discovered evidence. The history of the case is the following: The plaintiff’s intestate, a small boy, was killed, it being alleged in the complaint that his death was caused by the negligence of a driver of a manure cart belonging to the defendants. The theory of the plaintiff’s case was that the boy was thrown down and run over by the defendants’ cart, that five of his ribs were broken and his lungs pierced by the broken ribs. The defendants’ theory was that the boy got onto the rear of the manure cart, fell and fractured his skull. The case was tried and a verdict was rendered for the plaintiff for $215, which was set aside by consent. It was tried a second time and a verdict was rendered for $2,000 in favor of the plaintiff. Judgment was entered upon that verdict for damages and costs in the sum of $2,514. The decedent was the son of Bohemian parents, and all the witnesses called by the plaintiff to testify to the facts connected with the accident were Bohemians, namely, Potrzilck, Pochacek and Belsky. An appeal was taken from that judgment to this court, where it was unanimously affirmed (68 App. Div. 638). A motion was made for leave to go to the Court of Appeals, which was denied. On the trials and on the appeals the defendants were represented by other attorneys than the one appearing upon this motion. After the decision was rendered upon the appeal, the defendants consulted with their present attorney, handed him a copy of the case on appeal, and, after reading it, he said that there must have been perjury somewhere in the case, whereupon the defendants instructed their new attorney to go among the Bohemians who would be likely to know of the character of the plaintiff’s witnesses and make an investigation and find out what he could about such witnesses. The attorney started out on this hunt for evidence, and says he found out from certain persons that they would support the version of the defendants’ witnesses given at the trial as to the cause of the accident, or would impeach the character of the plaintiff’s witnesses.

It is manifest that this is nothing but an attempt to reopen and retry issues that have been twice tried, and there is no excuse whatever shown for not making the investigation and getting this asserted newly-discovered evidence either for the first or the second trial. Upon reading the papers on the motion, the conviction is irresistible that this is merely an attempt to get the issues tried over again, which issues might have been tried with these same witnesses if diligence had been used to get them for either or both of the previous trials. The want of diligence is conspicuous; ordinary care in preparation for either trial would have led to the discovery of these witnesses. The gross neglect is fatal to the application. (Reid v. Gaedeke, 38 App. Div. 108; Biddescomb v. Cameron, 58 id. 42.) It is claimed that these defendants were surprised by what one Belsky testified to. He was not called on the first trial, but was called on the second. His evidence was important, but a new trial cannot be granted simply because the defendants could not or did not anticipate what he might swear to.

The order was properly made and should be affirmed, with costs.

Van Beunt, P. J., McLaughlin and Laughlin, JJ., concurred.

Order affirmed, with costs.  