
    Morris Solomon and Louis Lubin, Respondents, v. Sadie O. Alexander, Appellant, Impleaded with Louis C. Wedgefuth.
    First Department,
    November 6, 1908.
    New trial — newly-discovered evidence — perjury of witness—practice — case and exceptions — contents of order.
    An order dismissing a complaint for the specific performance of a contract to sell land should not be set aside and the case restored to the calendaron the newly-discovered fact that a witness called by the plaintiff gave false testimony as to a sale of the property made by the defendant subsequent to a rejection of title by the plaintiff.
    The court has no authority to entertain an application for a new trial on the ground of newly-discovered evidence until a case and exceptions have been made and settled.
    An order granting or refusing a new trial, except on the exceptions taken at trial, must specify the grounds upon which the motion and order were made.
    Appeal by the defendant, Sadie O. Alexander, from an order of tiie 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 4th day of June, 1908, granting the plaintiffs’ motion for a new trial.
    
      Prosper R. Ferrari for the appellant.
    
      Louis J. Vorhaus, for the respondents.
   Ingraham, J.:

These plaintiffs brought this action to recover a deposit made upon a contract for the sale of real estate and the expenses of examining the title, alleging that plaintiffs were ready and willing to perform, but that the defendant (vendor) did not tender a good title to the real property contracted to be sold. The ans wer denied the allegations that the plaintiffs were ready and willing to fulfill the contract, tendered the balance of the purchase price, and that the defendant was unable to deliver to the plaintiffs a deed of the premises as required by the contract. At the trial the court announced a judgment for the defendant, whereupon the plaintiffs moved for a new trial on all the grounds mentioned in section 999 of the Code of Civil Procedure, a section which applies only to an action at law tried before a jury. Subsequently the court signed a decision which, after finding the facts, and conclusions of law, directed judgment for the defendant Alexander upon the merits, and judgment was duly entered on the fourth of March in accordance with this decision, and qn the eleventh of March the plaintiffs' obtained an order to show cause returnable at Special Term, Part 1, why the judgment should not be set aside and vacated and why an order should not be made and entered granting the plaintiffs a new trial, and restoring the case to the day calendar of the court for trial. There is no ground mentioned in this order to show cause why a new trial should be granted. It was based upon affidavits which alleged that the evidence of a witness called by the plaintiffs was false and untrue, specifying the particulars in which it was claimed the testimony was false, and that plaintiffs had obtained knowledge upon that subject from the statements made - by an attorney at law who had represented third parties in a transaction in relation to this property after the trial and entry of judgment. The contract in question in this action was to have been closed on the 14th of June, 1906, but the closing was postponed until the 18th of June, 1906, when the plaintiffs made this alleged tender, but refused to accept the deed tendered by the defendant; The instance in relation to Which this alleged false testimony was given related to a transaction at which a deed of the same property was delivered on the 25th of June, 1906, eight days after the plaintiffs had rejected the title. The disposition that the defendant made of the property eight days after the plaintiffs had rejected the title and the rights of the parties were fixed is not very apparent. . According to the stenographer’s minutes which are annexed to- this record the trial court directed judgment for the defendant upon the ground that as there were obvious contradictions in the testimony of the witnesses for the plaintiffs, the court believed the witnesses for the defendant. ■ The witness whose testimony was alleged to be false was called, by the plaintiffs and not the defendant, and his testimony apparently had no bearing upon the real question decided by the court upon the trial. So, I think, the order was unjustified upon the ground of newly-discovered evidence. Ho other ground is suggested in the affidavits, or any where else. Hone of the rules regulating applications of this kind were complied with. Ho case was made or settled in this action and the motion, according to the order to show cause, was made solely upon , affidavits. The court had no authority to entertain the application until after a case and exceptions had been made and settled. Then rule 31 of the General Dales of Practice was ignored. That rule provides that when an order grants or refuses a new trial, except on the exceptions taken during the trial, it shall specify the grounds upon which the motion was made and the ground or grounds upon which it was. granted. So far as appears there was no ground upon which the motion was made, nor does the order recite any ground upon which it was granted. It is a novel proposition that when a party calls a witness whose testimony does not suit him, he. can after the case is decided and judgment entered find another witness who would furnish the testimony that he expected the witness he called to supply, ahd then get a new trial upon that ground.

The order appealed-from must be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Patteeson, P. J., Laughlin Clarke and Scott, JJ., concurred.

Order reversed, with ten -dollars costs and disbursements, and motion denied, with ten dollars costs.  