
    Mark J. Kalashen, Respondent, v. Jacob Till and Others, Defendants, Impleaded with Pincus H. Greenblatt, Appellant.
    First Department,
    February 18, 1910.
    New trial — newly-discovered evidence—judgment based on perjured testimony.
    Motion for a new trial upon the ground of newly-discovered evidence showing that the judgment was founded upon perjured testimony given by the plaintiff. The defendant, sued on foreclosure, resisted judgment for a'- deficiency on the plea that he had conveyed the equity of redemption to the former holder of the mortgage who had accepted the same in full satisfaction of the mortgage debt, and that the plaintiff, holding the mortgage by assignment, was not the real' party in interest. The plaintiff, however, testified that he owned the mortgage absolutely and that his assignor had no interest therein, ' whereupon evidence sustaining the defense was excluded on .the ground that the grantee of the equity of redemption held no title to' the mortgage at the time of the conveyance, and henee any agreement to release the mortgagee was without consideration. On the motion for a new trial it was shown by the defendant that the-plaintiff in a subsequent action brought toy him against another person swore that he had brought the foreclosure for the benefit and credit of his.assignor who owned the judgment. Held, that a new trial should he granted. - • . .
    Motions for new trials upon the ground of newly-discovered evidence are not to be lightly granted, and the mere fact that subsequent statements of witnesses are at variance with their evidence upon the trial is not, standing alone, sufficient. Each case.must he considered upon its own merits.
    Appeal by the defendant, Pincus H. Greenblatt, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 31st day of December, 1909, denying the said defendant’s 'motion for a new trial on the ground of newly-discovered evidence.
    
      Abraham A. Silberberg, for the appellant.
    
      John Bogart, for the respondent.
   Clarke, J.:

This was an action tried in October, 1907, to foreclose a mortgage. The judgment provided in case of a deficiency upon a sale for a deficiency judgment against the defendants Jacob Till and Pincus H. Greenblatt. There was a-deficiency of $4,582.05, for which judgment was entered up against the-appellant Greenblatt. The appellant in his answer, by way of avoidance, alleged that during February, 1907, he agreed with Max M. Pullman, the owner of the bond and mortgage in suit, that Pullman should accept conveyance of the equity in the mortgaged premises in release and discharge of the appellant’s personal liability for the payment of the mortgage indebtedness, and that the conveyance under this agreement was in fact executed; that plaintiff was not the real party in interest, and that Max M. Pullman was the real owner and holder of the bond and mortgage- in -suit, and as such agreed to accept in payment thereof a conveyance' of the equity of th^j mortgaged premises, which was in fact, accepted and executed by Pullman in full payment, discharge and satisfaction of the mortgage debt.

Upon the trial Lawrence E. Brown appeared for the plaintiff. He offered in evidence the agreement between Pullman and Greenblatt, dated September 10, 1906, by the terms of which Greenblatt assumed payment of the mortgage in suit, and also an assignment of the mortgage made by Pullman to Kalashen, the plaintiff, dated December 14, 1906, assigning the mortgage in suit. Kalashen testified: “ I have known Mr. Pullman for quite a' number of years. I have never been interested in real estate transactions with him. This is the first real estate transaction I had with him. The transaction with Pullman about the mortgage I had on December 14th, 1906. Q. Where was that assignment of mortgage made ? A. This was made in my place of business, because Mr. Pullman owed me $6,000, and he gave me this mortgage, you see. * * * ' I handed all the records to my attorney, Mr. Brown. * '* * I own absolutely the mortgage. Neither Mr. Pullman or any one else has any interest * * * in the mortgage. It is mine. I purchased it from Pullman.”

The defendant attempted to show conversations with Pullman between December, 1906, and April, 1907, in reference to the releasing of this liability for the payment of moneys mentioned in the bond and mortgage, the agreement made and the performance by Greenblatt by the conveyance by him. This evidence was not admitted upon the ground “ that at the time of the proposed agreement or alleged agreement the title to the mortgage was not in the defendant Pullman, and even if such agreemént was made by him it would be no consideration, for it, as lie was not the owner or holder of the bond and mortgage.” The defendant Greenblatt was, therefore,"not- permitted to prove his defense, and judgment went against him. ■

This motion for a new trial upon the ground of newly-discovered evidence was made in December, 1909. After setting up the result of the former trial-, the pleadings and the evidence, the moving affidavit states that deponent has found that Mark J. Kalashen, the plaintiff, brought a suit in the Supreme Court, Kings county, against Max.M. Pullman, as defendant, to recover $6,000 claimed as money loaned; that deponent found'this out through a lis <pendens published in the-Times during the previous month and then examined the papers in said action; that Pullman defaulted .on the trial and judgment in favor of Kalashen was entered. Thereafter Pullman obtained an order to show cause dated February 20, 1909, why that default should not be opened. In the papers on that proceeding it appeared that the defendant Pullman was married to plaintiff’s sister; that Kalashen, the plaintiff herein, in opposition to the motion to open said default, verified air affidavit the 24th of March, 1909, in which, referring to the foreclosure action at bar,, lie says : “ He [alluding to another witness] also can testify that the fore■closure proceedings were instituted by Lawrence E. Brown fof and on behalf of Pullman and for his benefit and-credit, and the only connection that I had with these proceedings was that the foreclosure of that in my name and the obtaining of this judgment, but all of this was done for the interest and benefit of the said Pullman, who now owns and controls tire judgment on said mortgage and the proceeds thereof, for- from the day that case was tried I personally knew nothing of the case and know nothing of it to-day. I never retained Lawrence E. Brown, lawyer, never paid him a dollar in my life for legal services, and also beg leave to call the attention of this court that Lawrence E. Brown, in his own affidavit, does not say that I ever retained him or that he ever appeared as my attorney. His statement in regard to having any connection with me .at all, or the fact that he was present at the time, he was so present as the attorney for Max M. Pullman acting in his behalf and at his direction; Since the obtaining of the judgment in the foreclosure proceedings I have never obtained a cent and know nothing about it, and in fact the defendant in the foreclosure proceeding came to me immediately after the foreclosure judgment there obtained and offered to settle with me for * * *’ $1,500, of which I told the defendant herein, Max M. Pullman, and he stated to me to do nothing, that lie personally would attend to it, and that he could get for the judgment one hundred, cents on the dollar.”

The appellant asks not a setting aside of the foreclosure, but a new trial so far as his personal liability on the deficiency judgment is concerned, upon the ground that that judgment was obtained by the false testimony of Kalashen that he was the true and lawful owner of the bond and mortgage and, therefore, no conversations or agreements entered into with Pullman, since discovered to be his -brother-in-law, were admissible, and that Kalashen having now made affidavit in another action, where he and Pullman are at odds, that he never purchased the bond and mortgage; that he was only holding it for Pullman; that he never employed the attorney who appeared for him, and that the whole thing was for Pullman’s,benefit, who was the real party in interest, it is shown that there was such a fraud perpetrated upon appellant and upon the court that the judgment entered in consequence thereof should not-stand;

We are of opinion that the motion should have been granted. The testimony given by Kalashen upon the former trial was material to the issue and was of the utmost importance. It absolutely precluded the defendant from presenting his defense. Kalashen swore that he was the absolute owner of the bond and mortgage. Of course, if that were so, the evidence offered was properly excluded. The statement in his affidavit in the Kings county action directly contradicts his testimony upon the trial in the foreclosure action, and if be -is now to be believed was false and knowingly false at the time it was given. •.

Motions for new trials iqpon the ground of newly-discovered evidence are not to- be lightly granted, .. The fact that subsequent statements of witnesses are at variance with their evidence given upon the trial is not alone sufficient. ' Each case must be considered upon its own facts and a.,strong case must be made out leading tp the conclusion- that justice requires a new trial. Such case., is made, we think, when a party to an action swears positively to a material fact which is conclusive and subsequently in a court proceeding swears as positively to the contrary. A judgment, obtained by the perjury of a party should not be allowed, to stand. Such a state qf facts is presented upon this record as convinces us that the discretion of the Special Term was not wisely exercised,

Of course, the judgment of foreclosure and the sale thereunder are in. no way affected,- but so far as the personal judgment against the appellant is concerned the order appealed from should be reversed, with ten dollars costs ..and disbursements to the appellant to abide the event, and a new trial ordered of the issues presented by his answer so far -as the complaint demanded relief against him.

Ingraham, P. J.,. Laughlin, Scott and Miller,'JJ., concurred.

Order reversed, with ten dollars costs and disbursements to appellant to abide event, and new trial ordered as directed in; opinion. Settle order on notice.  