
    ADAMS against BUSH.
    [No. 2.]
    
      Supreme Court, Fourth District; Special Term,
    August, 1863.
    Motions and Obdebs.—Leave to Renew.—Unpaid Costs.— Eokmer Adjudication.
    After á motion has heen denied, upon the ground that material facts, stated in the moving papers, ought to have been substantiated by the oath of the "witnesses, instead of merely by that of the attorney or party, it is proper to grant an application for leave to renew the motion, especially where the objection was not interposed by counsel, hut was raised by the court, of its own motion.
    
    The court will not refuse leave to renew a motion merely because the costs of the former application remain unpaid, unless it appears that the party seeks to avoid payment, or is insolvent, or has no property within the jurisdiction of the court, from which payment may he obtained by the usual process. *
    A decision of the supreme court of the general term should not be reconsidered by a single judge sitting at a special term, though on an intermediate appeal to the court of appeals a member of that court may have expressed an adverse opinion to that of the supreme court.
    Motion for renewal of a motion for a new trial, previously' denied.
    The plaintiff having recovered, on a trial before a referee, only part of his claim, moved for a new trial, on the ground of surprise and newly discovered evidence. The motion was denied; and on appeal to the court of appeals, the order was affirmed, on the ground of a defect in the moving papers, the only judge who expressed an opinion on the merits of the case, holding however, that on the merits, the moving party would have heen entitled to a reversal of the order. The facts are fully stated in our report of that decision, supra, 104.
    The plaintiff procured the necessary affidavits to supply the ' defects in the moving papers, and now applied to renew his motion.
    
      Henry C. Adams, plaintiff in person, for the motion.
    I. The plaintiff has adopted the correct partice by asking leave to renew his motion, he having lost his former motion upon a supposed defect in his papers (Mitchell v. Allen, 12 Wend., 29C; Dolfus v. Frosch, 5 Hill, 493; see note, 494; Bellinger v. Martindale, 8 How. JPr., 113). The fact that such leave was granted should be stbted in the order (5 Hill, 493).
    II. The plaintiff has fairly explained the difficulties and uncertainty in the practice in such cases; his inability to obtain the affidavit of Davis, the principal witness; the undisputed influence brought to bear by the defendants against his making an affidavit; that the judge, at the special term (in November, 1861), told both attorneys that, when there was no dispute about the facts, such affidavits were unnecessary; that plaintiff requested the motion should be held open, or else denied without prejudice, in case objection should be taken to the sufficiency of plaintiff’s papers, or the correctness of his practice, and that no objection of that nature was taken on the motion; that plaintiff lost his case, in the court of appeals, solely upon a supposed technical defect, not before suggested; the fact too thalfc the motion was not heard, but was submitted to Judge Jambs upon the papers, besides other important facts appearing in the case—especially the fact that upon the examination of said Davis, before the referee, on the 31st of July, 1863, said Davis disclosed the fact that Jacob G. Bush was not present at the execution by Davis of the first undertaking, April 23, 1859, which fact this deponent never knew until it was so disclosed by said Davis, and the same is a newly discovered fact, first made known to deponent through such examination, and was not previously known to this deponent to exist;—all show that it is just to allow the motion to he renewed. The law of estoppel does not embrace summary applications, addressed to the discretionary jurisdiction of the court, especially where new facts are developed, or where there was ignorance of the practice, or surprise, etc. Such is the plain determination of the cases (Simson v. Hart, 14 Johns., 63; see Spencer, J., 77; Dolfus v. Frosch, 5 Hill, 493, and see note, 494; see also Ph. Ev., Edwards’ ed., note 262, on 20; note 292, on 114, 115). In Mitchell v. Allen, 12 Wend., 290, Sutherland, J., says, “ Such motions are always granted if,” &c.
    HI. The motion for a new trial should be granted for many reasons, and particularly, (1.) Upon grounds and authoi'ities stated in my printed points in ■ the court of appeals. (2.) For reasons and upon principles stated in the opinion given in the -court of appeals, per Denio, Ch. J. That opinion is unanswerable in its arguments, and pre-eminently just in its terms and principles; and—especially as there was no dissenting voice against it—will strike the professional mind of the land as a complete authority, and as a perfect overthrow of the groundless opinion of Rosekrans, J., to the contrary, at the general term, which latter opinion received no countenance in the court of appeals.
    It purports to be founded upon 10 Wend., 285; when, upon the face of it, that case is direct authority against that opinion; and so it is treated per Demo, Ch. J., from whose opinion no voice dissented, not even Mr. Justice Rosekeans himself.
    
    The conclusion in the court of appeals states, "the other judges, however,” &c., from which it is fairly to be inferred the court were finally unanimous in the views of the Ch. J., and that, upon the merits, the order of the general term should have been reversed for the reasons, and upon the tenns there stated ; but as the plaintiff’s papers were supposed to contain a technical defect not before complained of or suggested, "they therefore decided to affirm the order %t,pon that ground J
    
    Giving the words "however ” and “ therefore ” their full and fair signification, and no professional mind, governed by a sense of equity and justice, can doubt, in view of the whole case, that plaintiff should have his motion, at least upon the terms indicated in the opinion per Denio, Ch. J.
    
      Why the court of appeals should reach so far for an unsuggested and uncomplained-of cause to affirm a decision which, upon the merits, is conceded in the opinion given in that court, to be erroneous and unjust, is past my comprehension. The parties were not heard upon any such question. The only case where it was ever held to be necessary to produce the affidavit of the witness was in the superior court of New York, where it was made a distinct ground of preliminary objection (Denn v. Morrill, 1 Hall, 382), while here no such objection was taken by counsel at any stage of the case.
    The decision, however, has been made, and the plaintiff’s only course to obtain his rights, is to go back and meet the supposed difficulty, which he now does to the fullest extent, by producing the affidavits of the witnesses.
    
      J. Genter, opposed.
    I. Defendants insist that by the remittitur and the judgment of the court of appeals, the plaintiff is estopped in this motion. The general term order is affirmed, it is not reversed; and it must be affirmed in that court (2 Pctige, 45).
    II. The plaintiff has been too negligent to be entitled to move now; and his ignorance of the law will not excuse bim (10 Wend., 285; 2 Caines, 182; 18 Johns., 489; 10 How., 261; 7 Barb., 270).
    
      
      Compare Livingston’s Petition, Ante, 1.
    
   Bockes, J.

This is a motion for leave to renew a former motion for a new trial, on the ground of newly-discovered evidence, and that such motion be now granted.

The former motion was made at special term, and denied. Thereupon an appeal was taken to the general term, where the order was affirmed, and this latter order was affirmed on appeal in the court of appeals.

The motion was denied at the special term, and also at the general term of this court, on the ground that the newly-discovered evidence was merely cumulative.

In the court of appeals an affirmance of the order was granted, on the ground that there was no affidavit by the witnesses, who, it was claimed, would give the additional evidence relied on, stating that they were ready to swear to the facts constituting the newly-discovered evidence. The affidavits of those witnesses are now produced.

I. The first question here to be considered is, whether leave to renew the motion should be granted. I am persuaded that the court should not permit a mere technicality to preclude the hearing of this motion on the merits. The ground of the decision in the court of appeals was not suggested by counsel in .that court, nor'was it urged in the court below. The motion was allowed by counsel to stand on the question whether the evidence alleged to have been newly-discovered, was or was not cumulative; and the decisions in the supreme court were made on consideration of that question only. Had the objection taken by the court of appeals been urged originally at special term, undoubtedly the count would have denied the motion without prejudice to its renewal, or have allowed the motion to be renewed on application for that purpose. This point having been sprung upon the party on the last decision, without suggestion by counsel even, I think he should be allowed to stand in the same position as if it had been urged against him successfully at special term in the first instance. The case, however, stands now on a different state of facts from those presented on the former motion, or rather on a fuller statement of facts. The defect which controlled the ultimate decision on the former motion is now cured, and in this view it may be considered a new and original motion. At all events, I am satisfied that it would not accord with a just sense of propriety, or be deemed a fair exercise of discretion, to refuse to the party a hearing of the motion on the merits, as regards this objection, as the case is presented here on the papers.

II. It is urged against a renewal of this motion that the costs of the former motion remain unpaid. This objection is addressed to the discretion of the court, and will generally prevail when it is made to appear that the party seeks to avoid payment—or is insolvent—or has no property within the jurisdiction of the court, from which payment may be obtained through the ordinary appliances of the law. But neither of these difficulties are here suggested. This objection to the renewal of tin motion, therefore, should not be allowed.

III. It is insisted by the counsel who opposes the motion— and this was urged on the former motion—that the allege! newly-discovered evidence is merely cumulative. If this be so, the motion should be denied on the merits, for it is the unquestioned rule of law, that a new trial will not be granted on the ground of newly-discovered evidence, when such evidence is merely cumulative. Ho citation of authorities is necessary in support of this proposition. It is urged by the opposing counsel that it has been decided in this case, and on substantially the same facts, that the evidence set forth as newly-discovered was merely cumulative, and that such decision has not been reversed, overruled or shaken by any subsequent decision. If this be so, I am concluded here, at special term, by such adjudication, and am not at liberty to hold otherwise. If on examination -of the facts I should arrive at the conclusion that the decision was erroneous, it must stand as the law of the case until reversed. It is true, as I believe, that the court both at special and general term adjudicated that the evidence was cumulative. This stands as a settled fact on the papers. Has this decision been reversed ? The order of the supreme court was affirmed in the court of appeals.

Without going behind the order of the latter court, it would be presumed that the decision of the supreme court was right on the questions discussed and decided by it. But it is made to appear before me that the judgment of affirmance in the court of appeals was based on a defect in the moving papers, and that the court did not pass on the question whether or not the evidence was cumulative. It is made to appear before me that the court decided to affirm the order appealed from, upon the ground that the plaintiff’s papers in support of the motion did not contain the affidavit of the witnesses, who, it was claimed, would give the additional evidence relied on, stating that they were ready to swear to the facts claimed to be newly-discovered, without passing upon any other point.” As to this the court were unanimous, and no other question was decided (See opinion of JudgeDsma, with Reporter s statement, sitpra, 111). This opinion and certificate was read on the motion. The fact appears, that the question whether or not the evidence was cumulative, was not passed upon by the court of appeals. This being so, there has been no reversal of the decision of this court, declaring that the alleged newly-discovered evidence was cumulative. As above stated, it appears distinctly that this question was not determined by the court of appeals, although it was discussed by the judges on consultation, and by Judge Denio in a written opinion, in which he arrives at the conclusion that the evidence was not cumulative.

It is said that this motion stands on other facts than did the former, besides those introduced to meet and cover the defects held to be fatal by the court of appeals. But on examination it will be readily perceived that the new facts are of the same character and belong to the same class with those formerly relied on; hence, the case is not relieved from the binding force of the former decision declared by this court at general term, which, as we have seen, has not been overruled or reversed.

It will not do for me, at special term, to override the adjudication of this court made at general term. Whatever might be my convictions of its correctness, I owe the decision respect and obedience. I must adhere to it as already pronounced until overruled or reversed by the court of appeals, or by this court at general term, on a reconsideration of the question.

The motion must be denied.  