
    Tripler vs. Ehehalt.
    Additional evidence to support a point which was the subject of inquiry and testified to, on the trial—such as the degree of injury to the plaintiff in an action for an assault—is substantially cumulative; and a new trial will not be ordered on the ground of its discovery since the trial; particularly where the fact to be proved was within the knowledge of a witness examined on the former trial.
    (Before Robertson, Ch. J.,
    at special term, February —, 1866.
   Robertson, Ch. J.

J. The present motion is for a new trial, upon the ground of newly discovered evidence. The action was for an assault and battery; the plaintiff testified that he was 'so much injured by the attack complained of as to be unable to work for some time afterwards. The evidence claimed to be newly discovered is that one of the witnesses examined on the trial, (Hager,) knew, and could ■prove that the plaintiff was at work the next day, and not so seriously injured, and that the defendant was ignorant thereof. The severity of the injury to the plaintiff was therefore, a subject of inquiry and testified toon the trial. It has long been settled that such a fact is not a subject upon which newly discovered evidence is allowed in order to warrant a new trial. (Halsey v. Watson, 1 Qai. 24. 8- 'C. Col. § C. Ca. 160.) It is substantially cumulative evidence. (People v. N. Y. Superior Court, 10 Wend. 286. Brisbane v. Adams, 1 Sandf. 195.)

The motion must be denied, with $10 costs.  