
    John F. Butterworth, Receiver, v. John W. Warth.
    1. Where, on a motion for a new trial, on the" ground of 'newly discovered evidence, consisting of proof that the footings of the account contained in. tire book kept by the bank of which plaintiff is receiver, showing its daily cash balances, w,ere erroneous; and which footings had been read to the. iury as being accurate; a new trial will be granted where the judge is satisfied by the case, that if the book so read in evidence had contained accurate footings of said account, the verdict would have been for the defendant,
    (At Special Term, October 29, 1859.
    Before Bosworth, Ch. J.)
    The defendant moves at Special Term . on a-.case, and on affidavits of newly discovered evidence, for a new trial. The action is brought by the plaintiff, as Receiver of the property and effects of the Island City Bank, against one H. Anton Miller, as the maker, and defendant Warth as the indorser of a note for $550, dated June 13, 1857, at three months, to recover the amount of such note and interest, which note the Bank owned when the plaintiff was appointed Receiver, (September 25,1857,) and which was then past due.
    The defense was, that on or about the 22d day of August, 1857, the defendant, Warth, left at the Island City Bank $300, to be deposited to his credit, which sum had not, in fact, been credited to him on its books, and he claimed that this sum and a balance (exclusive of this $300) of $275.54 standing on the books of the Bank to his credit, should be set off against the note, or enough to satisfy it. The defendant gave evidence tending to show, that at the time he left the $300 he was in a great hurry, and so stated, and put the money and his bank book on the counter of the Bank, in the presence of, and with the knowledge of an officer who was accustomed to receive money , of customers and enter the deposits. There was some slight evidence favoring the hypothesis that the money and book were not seen by any officer of the Bank when they were so left, so that the money was exposed, and liable to be taken by any one who might have chanced to witness the transaction.
    The Bank’s book, showing its daily cash balances, and kept by the second Teller, to verify the accuracy of his account of daily transactions, was produced and read in evidence. As the , entries in it, which were read to the jury as being accurate, were footed up, they showed a deficiency of twelve cents in the Bank’s cash account on the day of the alleged deposit, and on the day next subsequent thereto, of $3.24. The affidavits of newly discovered evidence show, that on a correct addition of the items entering into that account, and which had been so footed up as to show the deficiency of twelve cents, there was an excess of cash on hand at the close of the day of the alleged deposit, of $749.88.
    The defendant Warth also testified, that he had promised Miller to take up the note, and that he told the President of the Bank that he was to pay it, and had money enough in Bank to pay it, and the President said he would take care of it.
    
      Eo objection was made against allowing the $275.54 to be credited upon the note, but the contest was, whether the $300 had been so deposited as to bind the Bank and entitle Warth to have enough of that sum applied to satisfy the note in full. The Jury found a verdict of $217.45 for the plaintiff. The cause was tried before Boswobth, Ch. J.r in February, 1859.
    
      Mr. Andrews, for defendant, Warth.
    
      C. A. Peabody, for plaintiff.
   Bosworth, Ch. J.

I think the verdict is against evidence, if it be assumed that the evidence shows, that on the day on which, as the defendant testified, he left in the Island City Bank $300, to be deposited to his credit, the Bank’s balance account for the day showed an excess in its favor of $749.88. The bookkeeper testified that the footings in the book of the Bank produced, showed a deficiency against the Bank, of twelve cents. That was true, and only true because the items were erroneously footed. He testified in good faith, and his statement of the result shown by the books, was taken as the truth of the matter.

My conclusion at the trial was, and now is, that if this book had not been produced and the testimony given in relation to the fact above stated, which was given, the verdict would have been in favor of the defendant.

I'think a new trial should be granted on the terms of the defendant’s paying the costs of the trial, and that the costs of the subsequent proceedings be costs in the cause, and abide the event, (Kennedy v. The Harlem R. R. Co., 3 Duer, 659.)

Ordered accordingly.  