
    Benjamin B. Conable, Resp’t, v. Edgar K. Smith, Survivor, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 23, 1892.)
    
    1. Appeal—New trial.
    After an appeal has been taken from a judgment and the judgment has been affirmed, it is not permitted to the party aggrieved to go back to special term and move for a new trial on a case and. exceptions and then appeal from the order denying such motion, and thus obtain a second hearing in the appellate court.
    2. New trial—Newly discovered evidence—Affidavit.
    An affidavit of a proposed witness as to his belief or understanding of the facts, without stating them positively, is not sufficient for the_ court to act upon on a motion for a new trial on the ground of newly discovered evidence.
    3. Same.
    The proposed witness was in court at the time of the trial, to the knowledge of. the moving party, but was not called because it -was not known what he would testify to. Meld, that it is not permissible for parties to thus experiment with the court, and afterwards claim the privilege of anew trial under pretense that the evidence is newly discovered.
    Appeal by Edgar K. Smith, surviving defendant, impleaded with Charles K. Brown, now deceased, from an order of the special term of the supreme court in Wyoming county, dated the 27th day of April, 1891, and entered in that county September 15, 1891, denying his motion for a new trial made on a case and exceptions, and also upon the ground of newly discovered evidence.
    
      L. W. Thayer, for app’lt; Byron Healy, for resp’t.
   Macomber, J.

Judgment was entered against the defendants, Edgar K. Smith and Charles K. Brown, on the 15th day of June, 1878, upon a verdict at the circuit The notice of appeal from such judgment was served October 30, 1890, and the same was pending on appeal in the general term at the time that the motion herein was made. The case upon the former appeal was submitted to this court in June, 1891, and was decided in favor of the respondent in October, 1891.

This motion was noticed for the 27th day of April, 1891, and was subsequently heard at the special term and was denied, from which order this appeal is taken.

The opinion of this court upon the former appeal is reported in 40 St. Rep., 577.

This action was brought upon a promissory note executed by one Henry Gfarretsee in the sum of $2,000, dated February 1, 1871, payable to the defendant, Charles K. Brown, at the "Wyoming County National Bank, at Warsaw, N. Y., with interest after the first day of March thereafter. It was endorsed, before delivery to the plaintiff, and before maturity, by the defendants Brown and Smith. The bona fides of the plaintiff were not disputed upon the trial, and the only defense urged was that the note had been altered in a material respect after the endorsement was made, and before the same was negotiated. Such, change, it was alleged, consisted in inserting the following words: “ and interest after the first day of March next” This defense was, upon the trial at the circuit, sustained by testimony given in behalf of the defendants and by a so-called expert. It appeared, however, that subsequently to the delivery of the note to the

Elaintiff bankruptcy proceedings were instituted against the ma-er of the note, Henry Garretsee, which were subsequently discontinued on payment by him of twenty-five per cent of his indebtedness, including this outstanding note. Both of the defendants, Smith and Brown, united in an agreement to the effect that on payment by the maker of twenty-five per cent of the whole, he might be released from further liability thereon, and such release should not in any respect vary or modify the obligation of the endorsers. The other facts appear in the opinion above alluded to, and they need not here be again rehearsed.

We have before us upon this branch of the case the same argument that was addressed to us upon the appeal from the judgment, in addition to the points applicable to that part of the motion pertaining to the newly discovered evidence. There is no practice with which we are acquainted which enables parties thus to get a second hearing in the appellate court. After an appeal has been taken from the judgment, and the judgment has been affirmed, it is not permitted to the party aggrieved to go back to the special term and make a motion for a new trial on a case and exceptions, as was done in this action, and then appeal from the order denying such motion, and accordingly we must affirm that part of the order appealed from, and adhere to our former decision upon the case as it was made at the circuit.

There is, therefore, no question which we ought to entertain for a moment upon this appeal, except that part of the motion made at the special term for a new trial upon the ground of newly discovered evidence. There are many fatal objections to this part of the case also, one of which is, that the motion was not made within the time limited for an appeal to be taken from the judgment as is provided for by § 1002 of the Cede. But there are other grounds of objection which I proceed to state.

The principal affidavit upon which a new trial upon the ground of newly discovered evidence was based, consists of that of Henry Garretsee, the maker and writer of the note. In his affidavit, bearing date the 30th day of March, 1891, he says that when the note was drawn and signed by him, and at the time it was endorsed by Brown and Smith, “ it was in the words and figures following,” “as deponent verily believes;” thence follows a copy of the note with the words, “ with interest after the 1st day of March, next,” left out. The affiant then proceeds as follows: “ Deponent says he verily believes, and he has no doubt he wrote the words, 1 and interest after the 1st day of March next,’ in said note, as last above set out: that said Brown and said Smith had. endorsed the same,” and he further says that this was done without notice to said endorsers and without their knowledge. This affidavit is extremely inconclusive and ambiguous. It is inconclusive in that the only thing the affiant has sworn to relates to his belief. He does not seem to have any knowledge or recollection in regard to the matter. An affidavit of mere belief, without stating facts, is not an assertion of any facts upon which courts can safely act; and for this reason, also, the affidavit was insufficient even to call upon the other side for counter affidavits. But the same person made another affidavit on the 13th day of April, 1891, in which he stated “ that he understood it (the note) to be endorsed in blank and be had a legal right to insert the words and interest after the 1st of March next.’ ” The second affidavit is as inconclusive as the first one, and neither of them contains a positive or unqualified assertion of a matter of fact which necessarily was within the knowledge of the affiant. In the first affidavit, he merely asserted his belief. In the second one, he says he “ understood,” which is another form o'f asserting a belief. These affidavits, therefore, must be thrown out of the case as entirely worthless.

There is still another reason why this motion was properly denied at the special term. It appears that upon the trial of the action the maker of the note, Henry Garretsee, was present in court and heard the testimony of the two defendants to the effect that this alteration has been made in the note. But he was not called as a witness on either side. The fact that he was in the court was known to the defendants, for one of them, upon this motion, makes an affidavit to the effect that he knew he was present in court. He further says, however, that he did not know what this witness would testify to and hence did not call him. But under the well established rules governing motions for new trials upon the ground of newly-discovered evidence, it is not permissible for parties at the trial thus to experiment with the court, and afterwards claim the privilege of another trial under the pretense that their evidence is newly discovered.

It has often been decided by the courts, and stated by elementary writers, that the requisites for a successful motion for a new-trial upon the grounds of newly discovered evidence are these: (1) It must appear that the evidence has been discovered since the trial; (2) that it could not have been obtained upon the former trial by the exercise of due diligence; (3) that it is not cumulative; (4) that in its character it is so decisive that there is a reasonable certainty that on another trial it would change the result; (5) that the motion has not been unreasonably delayed. An inspection of the moving papers on this appeal shows clearly that not one of these reasonable rules has been observed in this instance.

The order appealed from should be affirmed.

Order appealed from affirmed, with costs.

Dwight, P. J., and Lewis, J., concur.  