
    Elizabeth B. J. Hammond, as Administratrix, etc., of Werden F. Hammond, Deceased, Appellant, v. The Delaware, Lackawanna and Western Railroad Company, Respondent.
    Third Department,
    November 16, 1910.
    New trial — proof not showing misconduct of counsel — railroad — negligence — death of locomotive engineer by collision.
    An order granting a new trial on the ground of alleged misconduct of counsel in conspiring with a witness to give false testimony, and in agreeing to pay him a percentage of the verdict obtained, cannot be sustained where the only proof of the conspiracy is the affidavit of the witness, whose testimony did not relate to the extent of the injuries, if he subsequently made another affidavit stating that the first affidavit was false, so as to prove himself to be wholly unworthy of belief.
    A judgment for the plaintiff in an action brought to recover for the death of a locomotive engineer caused by a collision will be set aside and a new trial granted where the only negligence claimed was the failure of those in charge of a disabled train to flag a train coming upon another track, and it appears by the only credible testimony that but a very few minutes elapsed between the time the disabled train stopped and the collision occurred. This, because to charge the defendant with negligence, there must have been a reasonable time within which those in charge of the disabled train could have ascertained that it obstructed the other track.
    Appeal by the plaintiff, Elizabeth B. J. Hammond, as administratrix, etc., from an order of the Supreme Court, made at the Broome Special Term and entered in the office of the clerk of the county of Chemung on the 27th day of October, 1909, setting aside a verdict of $16,000 and vacating a judgment in favor of the plaintiff and granting a new trial upon the ground of newly-discovered evidence, and also from an order entered in said clerk’s office on the 9th day of November, 1909, granting the defendant’s motion for a new trial made upon the minutes, and also an appeal from an order entered on the 25th day of February, 1910, denying the plaintiff’s motion to vacate and set aside the orders entered on the 27th day of October, 1909, and on' the 9th day of November, 1909.
    The action was brought to recover damages for the death of the plaintiff’s intestate, who was an engineer in the employ'of the defendant, and was killed by a collision on the defendant’s road near Fargo, Genesee Co., N. Y., November 8, 1907. The plaintiff recovered a verdict of $16,000, Hay 5, 1909. Thereupon the defendant moved, on the minutes of the justice presiding, to set aside the verdict and for a new trial upon the exceptions taken by the defendant and on all the grounds mentioned in section 999 of the Code of Civil Procedure. Before the argument of this motion the defendant’s attorney moved at Special Term to vacate the judgment that had been entered, and to set aside the verdict because of newly-discovered evidence showing that one John Scott, Jr., a witness for the plaintiff, upon whose testimony the judgment was obtained had testified falsely upon the trial, and that the judgment was obtained by-means of a conspiracy between the witness and the plaintiff’s attorney. Upon the motion defendant read an affidavit made by Scott to the effect that he had testified falsely upon the trial and that before the trial he went to the office of Charles H. Knipp, plaintiff’s attorney, and that Knipp said to him in the presence of George M. Albot and Frank Keith “ that in case of a favorable verdict for plaintiff that deponent would be well paid for his services and testimony and said Knipp promised deponent $65.00 or $75.00 for every $5,000.00 of the plaintiff’s verdict.”
    In opposition to the application the plaintiff filed the affidavits of Knipp, Albot, Keith and the affidavit of David C. Robinson each of whom denied the statementof Scott as to what liad occurred between him and Knipp at the time it was claimed the agreement was made, and that the verdict and judgment were obtained by means of a conspiracy or a fraud upon the court.
    After hearing the parties the motion was granted and an order entered to that effect. It appears by the affidavit of the plaintiff’s attorney that after the receipt of a copy of this order lie wrote to the presiding justice saying that as the order “ makes no mention of the motion for a new trial on the minutes of the Justice, which was argued before you at the same time, I assume that that motion was denied. Kindly let me know if I am right about this.” To this the justice replied, October 29, 1909, saying that a motion for a new trial upon the minutes was made at the close of the trial; that before the minutes or briefs were furnished a motion for a new trial was made upon the ground of newly-discovered evidence and misconduct of counsel; that he did not think that it was the intention of the counsel for the respective parties to submit the motion for a new trial upon the minutes; that he saw no reason for a decision of the prior motion. “ However, if you wish that motion decided, I will make an order in it.” October 30, 1909, plaintiff’s counsel wrote that it was the understanding between the attorneys that the motion fór a new trial on the minutes should be and was argued at the same time as the other motion, “and I believe an order should be made in that motion. Will you kindly make such order as in your .opinion is right.” In pursuance of this request, an order was made and entered granting the motion.
    In February, 1910, the plaintiff moved upon affidavits to vacate and set aside the orders of October twenty-seventh and November ninth, and the motion was denied. Upon this motion plaintiff’s attorney read an affidavit made by Scott to the effect that the evidence given by him on the trial was true; that plaintiff’s attorney did not promise or agree to pay deponent sixty-five or seventy-five dollars for every five thousand dollars of the plaintiff’s verdict, or any other sum, and that he was induced to sign the affidavit containing such a statement by the threats and intimidation of a detective in the employ of the defendant.
    
      Charles H. Knipp [D. C. Robinson of counsel], for the appellant.
    
      Reynolds, Stanchfield & Collin [Halsey Sayles of counsel], for the respondent.
   Smith, P. J.:

These orders cannot be sustained upon the ground of misconduct of counsel. The agreement claimed by Scott to be made with the plaintiff’s attorney was an improbable agreement, considering the fact that he was swearing not to the extent of the injuries, but to a fact going to liability alone. In a later affidavit Scott withdrew these charges, and the record shows him wholly unworthy of belief. If the good name of an attorney were to be put in question by such evidence, the reputation of those standing highest in the profession would be very precarious.

nevertheless, we think there was good cause shown for the granting of a new trial. The negligence claimed was in the failure of those in charge of the disabled train to Sag a train coming upon the other track. Before that duty rested with those ip charge of the disabled train they must have had reasonable time to have ascertained that the other track was obstructed, because the nature of the stoppage would itself have given them no such information. After having acquired this information it would then have been their duty to protect trains coming upon the other track. The crucial question, therefore, was as to lio.w much time had elapsed since the stoppage of the disabled train and the approach of the train which bore the plaintiff’s intestate. The evidence was to the effect that it was a very few minutes, except the evidence of this man Scott, and Scott himself had theretofore made an affidavit contradicting the evidence tlien given upon the trial. Inasmuch, therefore, as the plaintiff’s case rested mainly upon this evidence, and the witness has retracted what he then sworn to and shown himself wholly unworthy of belief, it became proper in the exercise of fair judicial discretion to grant a new trial. This was without doubt the controlling reason for the action of the learned trial judge, and we think the orders should be affirmed, overruling the technical objections to the form in which the matter was presented to him.

All concurred; Houghton, J., not sitting.

Orders granting a new trial affirmed, with one bill of costs, Order denying motion to set aside orders granting new trial affirmed, with ten dollars costs and disbursements.  