
    Michael H. Hogan, Resp’t, v. Charles H. Carroll et al., App’lts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 19, 1889.)
    
    New trial — Newly discovered evidence.
    Where the affidavits for a new trial on the ground of newly discovered evidence disclose nothing new, hut merely reiterate the same facts sworn to upon the trial, they come under the rule that newly discovered evidence which is merely cumulative is insufficient to justify the granting of a new trial.
    Appeal from a judgment of the county court of Monroe county, entered on the verdict of a jury, and from an order denying the defendant’s motion for a new trial upon the minutes, and likewise from an order denying a motion for a new trial on a case and affidavits upon the ground of newly discovered evidence.
    
      John C. O'Brien and John F. Kinney, for resp’t; C. C. Davy, for app’lts.
   Macomber, J.

The defendants, who are dry good merchants, employed the plaintiff on the 21st day of February, 1887,-in their cloak department. The plaintiff claimed and gave evidence to establish the fact that the employment was for the period of one year, while the defendants’ testimony tended to show that the employment was only from week to week. The defendants discharged the plaintiff on the 9th day of July, 1887.

For such discharge and for the inability of the plaintiff to earn wages during a portion of the period. between the time that he was discharged and the time of the expiration of the employment as he claimed it to be, this action was brought. It was first tried in the municipal court where a recovery was had. Upon the appeal to the county court a verdict was rendered for substantially the same amount as was awarded to the plaintiff by the judgment of the municipal court.

We have examined the evidence of this action in detail and find that the jury was warranted from the testimony in bringing in the verdict which they have and that the court was justified in refusing to grant a new trial upon the judge’s minutes. The right to dismiss for cause was asserted by the trial judge to the jury; and had the defendants proper ground to dismiss the plaintiff for disobedience in the respect which they claimed, the jury doubtless would have so found under the instructions of the county judge, but they have seen fit to take the version given by the plaintiff rather than that given by the defendants, and have held under competent testimony and under proper instructions that the dismissal was without cause and that consequently the defendants were liable to respond in damages to the plaintiff.

The affidavits used upon the motion for a new trial upon the ground of newly discovered evidence disclosed nothing new in the defense. They simply reiterated the same facts sworn to by witnesses at the trial and hence come under the familiar rule that newly discovered evidence which is merely cumulative and of the same general class of testimony as that given upon the original trial is insufficient to justify the court in granting a new trial.

The judgment and orders appealed from should be affirmed.

Barker, P. J., and Dwight, J., concur.  