
    Abraham Brakman, Appellant, v. “ Luie ” Zavodnick, etc., and Another, Respondents.
    Supreme Court, Appellate Term, First Department,
    December 15, 1926.
    Trial — • new trial- — newly-discovered • evidence — action on promissory note — judgment in favor of defendant on defense of payment based on transfer of rents — evidence showing prior holder was agent and not assignee of rents, material — plaintiff could not have discovered evidence before trial.
    Plaintiff, against whom was entered a judgment in an action on a promissory-note based upon a defense of payment on the transfer of rents accruing to defendant from certain premises, is entitled to a new trial on the ground of newly-discovered evidence which shows that the prior holder of said note was merely the collecting agent of defendant and not the assignee of the rents; the proposed testimony of the new witness is material, and could not have been discovered prior to the trial where plaintiff learned of it merely through an unexpected meeting with the witness.
    Appeal by plaintiff from an order of the City Court of the City of New York denying his motion for a new trial on the ground of newly-discovered evidence.
    
      Hyman A. Bettigole [Leonard Probst of counsel], for the appellant.
    
      Kramer & Kleinfeld [Barnet Kaprovj of counsel], for the respondents.
   Per Curiam.

The motion relates to a defense of payment interposed at the trial based upon evidence by the defendant that the note sued upon had been paid by his transfer to one Mandel of rents accruing to defendant from certain premises. Among •other “ new evidence ” presented by plaintiff is the testimony of one Gluckman to the effect that he had lived with Mandel and that on various occasions he had seen the defendant come to Mandel and receive from the latter all the rents of the property owned by the defendant,' thus indicating that Mandel was merely the collecting agent of defendant and not assignee of these rents. We think that this testimony is material and very persuasive. There is no sound suggestion that plaintiff was aware of or could reasonably have suspected that such evidence existed or to affect his statement that he learned of it merely through a chance meeting with Gluckman.

Order reversed, motion granted, judgment vacated and a new trial ordered, with costs to appellant to abide the event.

All concur; present, Bijur, O’Malley and Levy, JJ.  