
    AUGUST C. RITTER, Plaintiff and Appellant, v. SAMUEL PHILLIPS and Others, Defendants and Respondents.
    In an action to foreclose a mortgage, the defendants, who were the grantees of the defendant, the mortgagor, pleaded a tender of the money due on the mortgage, and proved a sufficient sum tendered unless twenty dollars of the payments made were applied on account of interest, at seven per cent., while the mortgage on its face only called for six per cent., although plaintiff claimed seven per cent, under the following facts.
    When the mortgage became due, it was owned by one Weiner, the assignee of the original mortgagor. Phillips, the mortgagee, agreed with Weiner (verbally), to pay seven per cent, interest if he would extend the payment one year, and subsequently paid at that rate. Afterwards, Phillips conveyed the premises to defendant Krekeler, who conveyed to defendant Thaule subject to the' mortgage, —neither of whom had any notice of the agreement of Phillips to pay seven per cent, interest, and were not bound thereby, unless the payment of interest at seven per cent, by Krekeler, on one occasion, through his wife, was sufficient notice, and in regard to what occurred and what was said between the plaintiff and Mrs. Krekeler, the testimony was conflicting. The plaintiff obtained judgment, and defendants moved for a new trial at special term, on the ground of surprise and newly discovered evidence, and the motion was granted and an appeal made to general term from the order. Held, by the general term,—
    1st. There were no grounds for a new trial on account of surprise.
    2nd. The new evidence was of declarations of the plaintiff since the trial, contradictory of his testimony at the trial, and tended to establish that Krekeler had no notice of the agreement made by Phillips to pay seven per cent, and paid that amount by mistake.
    3rd. Under the findings and decisions of the court in the case, the question as to whether Krekeler had or had not notice of the parol agreement of Phillips was wholly immaterial.
    4th. The new evidence is cumulative; and therefore the order for new trial was reversed.
    Before Monell, Freedman and Curtis, JJ.
    
      Decided March 30, 1872.
    Appeal from an order setting aside a judgment at special term, and granting a new trial.
    The action was to foreclose a mortgage upon real property, made by the defendant Phillips in May, 1865, to secure the payment of four thousand dollars, on the first day of May, 1868, with interest at six per cent.. per annum.
    Subsequently to the delivery of the mortgage Phillips conveyed the premises to the defendant, Krekeler, who afterwards conveyed to the defendant Thaule. Each of the conveyances was subject to the mortgage, and each of the grantees assumed and agreed to pay the same. The complaint alleged a failure to comply with the condition of the mortgage by omitting to pay the principal and interest.
    The defense of the defendants, Krekeler and Thaule, was, tender of the amount due before suit brought.
    
      The action was tried before Mr. Justice Joxes, without a jury.
    On the trial it was found that before the mortgage became due, an agreement was made between Phillips, the mortgagor, and Weiner, the plaintiff’s assignor, and then holder of the mortgage, that if the payment ^ of the mortgage was extended for one year, the interest should be at the rate of seven per cent. The first month’s interest, falling due November 1, 1868, was paid by Phillips at the rate of seven per cent., and a written receipt given. Before the next half yearly interest became due, Phillips sold the premises to Krekeler subject to the mortgage, which the latter assumed.
    The evidence was conflicting as to whether Krekeler had direct notice of the agreement; to pay seven per cent. The plaintiff testified to a conversation which he swore was with Krekeler, when the latter, as plaintiff said, came to pay the interest falling due May 1, 1869, when, as the plaintiff,' says, he told Krekeler the interest was seven per cent., and Krekeler paid at that rate. He said both Krekeler and his wife were present during and at that conversation. The amount then paid was one hundred and forty dollars.
    The witness Christopher testified to saying to Mrs. Krekeler in presence of her husband, that the interest was seven per cent. This was denied by the witness Spaldorf. Krekeler and his wife and one Fitzpatrick all denied that Krekeler was present when the May interest was paid.
    In making up the amount to be tendered, the defendants computed the interest from November, 1868, to the time of tender, at six per cent., and, deducting the payment of one hundred and forty dollars, tendered the balance, thus claiming the excess of per cent, for six months, or about twenty dollars, as a payment on account of the principal.
    . The justice found as one of the facts that said plaintiff demanded said sum of one hundred and forty dollars, as and for said six months’ interest, and said William Krekeler paid the same under fhe mutual mistake of law, that the mortgagee, after his mortgage becomes due, may, as matter of law, demand seven per cent, interest, although the mortgage reserves a less rate, and on the further mutual mistake of law, that a parol agreement between the mortgagee and a former owner of the premises, who was liable for the payment of the mortgage, whereby the rate of interest reserved in the mortgage was waived, was binding on a subsequent purchaser of the premises, who, by the deed to him, assumed the payment of the mortgage, although he had no notice of such parol agreement.
    Thus allowing the plaintiff to retain the one hundred and forty dollars, as interest at seven per cent., due May 1, 1869, as a payment made under a mistake of law as to the effect of the parol agreement with Phillips, upon the purchaser from him.
    The tender was held to be insufficient, and judgment of foreclosure entered.
    Upon an affidavit of one Fitzpatrick, that he accompanied Mrs. Krekeler to pay the May interest, and that Mr. Krekeler was not present. The affidavit of Frost, Krekeler’s attorney, that since the judgment, Ritter the plaintiff, in an examination in another action, testified as follows :—
    Q. Did Mrs. Krekeler and another person call at your place in Houstón-street, on April 38, 1870, to pay you some money on a four thousand dollar mortgage ? ■
    A. N o, but they called to pay the interest then due on that mortgage.
    Q. Did Mrs. Krekeler pay one hundred and forty dollars on that mortgage, in the presence of that person, at that time %
    
    A. No, she asked to know how much the interest was. I said it was seven per cent., one hundred and forty dollars ; She said, it was all right, I will pay it, and she paid one hundred and forty dollars as interest.
    
    Q. Do you know William Krekeler ?
    A. Yes.
    Q. Was that person that was present with Mrs. Krekeler, at that time, William Krekeler, her husband?
    A. No, I think not.
    Q. Did you have a trial in the superior court, in October, 1870, in regard to that mortgage ?
    A. Yes.
    Also upon the affidavit of Krekeler that he was not present when his wife paid the interest. His further affidavit that the plaintiff had since stated to him that he thought the person with Mrs. Krekeler must be her husband, but that such person was not Mr. Krekeler. The affidavit of the defendant Thaule, ■ that the plaintiff has since stated that he was mistaken as to Krekeler’s being present. And the affidavit of Heinecke to the same effect. And the affidavit of Krekeler, that such testimony of the plaintiff was upon a material matter, a motion was made for a new trial, and granted at. special term.
    It was claimed that this was newly discovered evidence, and the motion was made on that ground, and also on the ground of surprise.
    The order at special term set aside the judgment and granted a new trial.
    The plaintiff appealed.
    
      Mr. D. M. Porter, for appellant.
    
      Mr. A. R. Dyett, for respondents.
   By the Court. — Monell, J.

Although “ surprise ” was one of the grounds upon which the motion for a new trial was made, there was nothing whatever in the affidavits to sustain it. Krekeler, who alone made the affidavit ás to the materiality of the evidence, did not claim that the defendants were surprised by the testimony of the plaintiff, but claimed that it was upon a material matter, which the defendants were now prepared to contradict. Indeed, the defendants could not claim to have been surprised. Mr. Krekeler and Mrs. Krekeler and the witness Fitzpatrick were present when the plaintiff gave his evidence, and afterwards, upon their examinations, denied that Mr. Krekeler was present when his wife paid the interest.

The motion, therefore, cannot be presumed to have been granted on the ground of surprise, but must be presumed to have been granted on the ground of newly discovered evidence.

The new evidence was of declarations made by the plaintiff since the trial, contradictory of his testimony at the trial. If, therefore, such evidence at the trial was to a material matter, the new evidence is ground for a new trial, unless it is merely cumulative.

The largest effect which can be given to this new evidence, is, that it might authorize a finding that Krekeler did not have notice of the parol agreement of Phillips, to pay seven per cent, interest. If he was not present when Mrs. Krekeler paid the interest, then, perhaps, he is not to be bound by what was said to her, and is in a position to claim not to be affected by the agreement.

The competency of this evidence, for the purposes of this motion, depends upon two considerations :

First. Was the evidence it is designed to contradict material to the issue %

The learned justice who tried this action has not made any direct finding in respect to the notice, attempted to be proved, to the defendant of the parol agreement of Phillips. In the view taken by him, that cantract was not binding upon the grantee of Phillips, • who only assumed to pay the rate of interest reserved in the mortgage; and he accordingly found as a fact, that the demand and payment of seven per cent, interest was made under a mutual mistake of law, “ that a parol agreement between the mortgagee and a former owner of the premises, who was liable for the payment of the mortgage, whereby the rate of interest reserved in the mortgage was waited, was binding on a subsequent purchaser of the premises, who by deed to him had assumed the payment of the mortgage, although he had no notice of such parol agreement.

If anything can be derived from this finding,' it is that whether Krekeler had or had not notice of the parol agreement was wholly immaterial. In either aspect the agreement was not binding upon him, and he was liable to pay interest only at the rate reserved in the mortgage. He therefore held that the May payment of interest was made under a mistake of law “that the mortgagee after his mortgage becomes due, may, as matter of law, demand seven per cent, interest, although the mortgage’ reserves a less rate.”

We cannot, upon this motion, question the correctness of the decision below. We must assume it to be correct. If it is incorrect, the court, upon the pending appeal from the judgment, will send the case back for a new trial, when the new evidence, if it is proper, may be let in. But assuming the decision to be correct, then it is clear that the evidence now sought to be contradicted was wholly immaterial, and might very properly*have been excluded on the trial. And this is a complete answer to this motion for a new trial.

Second. But even in the view that the evidence was material, a finding that Krekeler had notice of the parol agreement could not be changed. He sent his wife to pay the May interest, furnishing her with the money, and she, on the demand of the plaintiff, paid at the rate of seven per cent., being told that the interest was at that rate until May. This was communicated to Krekeler by his wife, and he ratified all that his agent had done.

Again: the new evidence is cumulative. The plaintiff was contradicted at the trial by Mr. and Mrs. Krekeler and by Fitzpatrick, all of whom testified that Mr. Krekeler was not present, when Mrs. K. was told the interest was seven per cent, until May. To further contradict the plaintiff, even by his declarations since made, would be merely to accumulate evidence.

The motion for a new trial should not, therefore, have been granted, for all or either one of these reasons: First, the evidence designed to be contradicted was immaterial ; second, such evidence showed that notice of the parol agreement was given to the defendant’s agent; and, third, the new evidence is cumulative.

The order setting aside the judgments and granting a new trial should be reversed, with costs.  