
    MAY v. STRAUSS.
    
      City Court of Brooklyn; General Term,
    1880.
    New Trial.—Newly-discovered Evidence.—Diligence.
    in an action for rent, the defense being a surrender and substitution of tenants, the alleged new tenant testified to the substitution, and that he paid the rent by a check; and after the trial it was discovered from his bank account and checks that no such check existed. Held, that it was proper to grant a new trial on the ground ■ of newly-discovered evidence.
    This evidence is "not objectionable as being merely cumulative and impeaching testimony, but must be regarded as direct and independent proof.
    The principle that it is in the discretion of the court to grant a new trial where a witness has fallen into an error which may have affected the verdict,—applied.
    As there was nothing in the answer to put the plaintiff on inquiry, want of diligence cannot be imputed to him.
    Appeal from an order granting a new trial, on the ground of newly-discovered evidence.
    The action was brought by Moses May against Bernard Strauss. The plaintiff sought to recover S3,460.84, rent of premises which had been occupied by the defendant, according to the terms of a lease granted to him by the plaintiff. The lease was admitted on the trial. The defendant sought to show that during the term and ■on the occasion of his selling out his interest in the business, the plaintiff consented to look to the purchaser, the new tenant, for the rent, and discharged the ■defendant, assuring him that he had nothing further to do with the lease. According to defendant’s proofs, that arrangement was made at the store on the 9th or 10th ■of December, 1873, and by reason of it the rent for that month was then paid to the plaintiff by Mr. Hoffman, the new tenant, by his check on the bank. In his testimony the plaintiff denied that he was at the store on the occasion stated, that he then knew of the defendant’s sale, that he had used the words imputed to him about the lease, or had received Hoffman’s check for the December rent, as alleged. The check was not produced. The question thus raised having been submitted to the jury, the defendant had a verdict.
    On the motion for a new trial it appeared that the check in question had not been given ; and that, as the defendant’s proof as to that part of the arrangement was erroneous, there was reason to apprehend that the jury had been misled.
    The court at special term granted a new trial, the following opinion being rendered.
    MoCue, J.—[After reviewing the facts.]—I am strongly impressed with the idea that this proof would have seriously impaired the reliance which the jury seemed to place in the mere recollection of the witnesses who testify as to the alleged surrender, and all that there took place, and that if the jury had come to the conclusion that the defendant and his witnesses were in error on this point, it is not unlikely that they would have disregarded their testimony as to the surrender itself. It is not a question as to the payment of the rent, for it is conceded that the rent for December, 1873, and January, 1874, was paid, and under ordinary circumstances, it would not have been important even to inquire by whom it was paid. The point, however, derives significance, from the fact that the rent is claimed to have been paid by the incoming tenants at the time the surrender was negotiated, and thus became a part of the res gestee.
    
    It does not appear to me, therefore, that the new evidence is open to the objection that it is simply cumulative, and intended only to impeach the testimony of the other witnesses; undoubtedly it will, if relied on by the jury, have a tendency to contradict the defendant’s witnesses, but this may be said of all opposing testimony. The bank book and checks taken together constitute the highest order of proof upon the subject-matter to which they relate, and should, in furtherance of justice, appear in the case. Hoffman, one of the incoming tenants, testified that he paid the December rent on the 10th day of that month, and by the firm check, that he got the check for a receipt, and that at the time of the trial the check was, he supposed, in the possession óf Judge Daily.
    The importance of the new evidence is, therefore, evident. The case of Hodge r>. Denney, reported in 6 Alb. L. J. 93, is in point.
    It cannot be fairly said that the plaintiff was guilty of laches, in not producing this testimony on the trial. He could not be expected to anticipate any such testimony, in view of the fact that he denies that any such check was given to him.
    As to the objection that the motion is not made upon a case, as provided by the rules, undoubtedly the better practice is to prepare a case, as required; but in this instance, the stenographer’s minutes seem to have been served and accepted as the case, and I find among the papers an admission of the “service of within case, on motion for a new trial.” This' is a substantial waiver of the irregularity.
    Under all the circumstances of the case, therefore, I am satisfied that the purposes of justice will be sub-, served, by permitting another jury to review and pass upon all the facts which can be established in evidence.
    The motion for a new trial is therefore granted, upon payment of the costs of the former trial, and $10 costs of this motion.
    From this decision defendant appealed.
    
      Francis Q. Reed, for defendant, appellant.
    The evidence was not newly discovered, but might have been produced on trial (Bond v. Cutler, 7 Mass. 206; approved, 7 Barb. 277; Hatfield v. Macy, 52 How. Pr, 193; 5 Daly, 489; 6 Id. 190; 54 How. Pr. 494; 10 Wend. 298). The evidence is immaterial, and not likely to change the result. It is cumulative (Opinion of Mason, J., 7 Barb. 276; Hannington v. Bigelow, 2 Den. 104; 10 Wend. 294; 4 Johns. 425; 5 Id. 249, note b.; 3 Id. 256; Graham, & W. on New Trials, 496, 502). A new trial will not be granted where the newly-discovered evidence is material only to discredit or contradict a witness (11 Barb. 221; Powell v. Jones, 42 Id. 214; Gautier v. Douglass Manufg. Co., 52 How. Pr. 328; Id. 198; Carpenter v. Coe, 67 Barb. 411). The new evidence must be on a new point. The plaintiff, by underletting the premises, dispensed with the necessity of a surrender, and no re'covery should be had, on the plaintiff’s own showing (Taylor Landl. and T. 7 ed. § 516, and cases cited).
    
      Wm. B. Hurd, Jr. (Fisher, Hurd & Voltz), for plaintiff, respondent.
    Motions for new trials, on the ground of newly-discovered evidence, are not governed by well-settled rules, but rest in the discretion of the court, depending on the circumstances of each cáse (Barrett v. Third Avenue R. R. Co., 45 N. Y. 628). The evidence is not cumulative, as cumulative evidence is evidence of the same degree and character (Gale v. New York Central & Hudson River R. R., 53 How. Pr. 385; Hodge v. Denney, 6 Alb. L. J. 192; Platt v. Munroe, 34 Barb. 291). Conspiracy and perjury are good grounds for a new trial (Raphelsky v. Lynch, 43 How. Pr. 157; Meyer v. Feigel, 38 How. Pr. 424). The evidence is material, and could not have been discovered before. It was no want of diligence to fail to anticipate the mistake or perjury of the defendant’s witness.
    
      
       See Code Civ. Pro. § 1007.
    
   Neilson, Ch. J.

[After stating the facts as above.]—The defendant was seeking to be relieved from the performance of his covenant. The evidence of the arrangement set up, tending to prove a release from his obligation, a substitution of tenants, appears to have been in part oral, in part written, the same as to time, place and purpose, the whole bound up as in a single sheaf; and the non-existence of the written part was, to say the least of it, a vital discovery. It would seem, therefore, that the learned judge might well have been strongly impressed with the equitable character of the application.

On the argument before us, the learned counsel for the defendant claimed that the proposed evidence, if newly discovered, did not, within settled rules of practice, entitle the plaintiff to the order granted. Those rules were intended to promote justice, to give to the suitor, who, in the due course of administration, and by proper means, secures a verdict, a sense of security and repose. But the learned judge, as appears from his opinion, regarded the case presented as exceptional. I think that view was correct in principle, and consistent with several decisions in practice cases.

The specific objections raised and earnestly enforced by counsel, that this testimony, as to the non-existence of the check, is cumulative, and mere impeaching evidence, are conclusively answered in cases less clear and strong than that before us (Oakley v. Sears, 1 Abb. Pr. N. S. 368; S. C., 1 Robt. 73; Powell v. Jones, 42 Barb. 24).

The question whether the plaintiff did receive Hoffman’s check on the 10th of December, or for the rent of that month, was contested on the trial. But proof of Hoffman’s account at the bank, and his checks, showing that no such check as that in question had been in fact made by him, must be regarded as direct and independent evidence.

The humane and saving principle that, in the discretion of the court, a new trial may be granted when a witness has fallen into an error which might have an effect in turning the verdict, as in Coddington v. Hunt, 6 Hill, 595, and cases cited by Bronson, J., applies.

This case is yet more fitly illustrated by that of Wehrkamp v. Willet, 1 Daly, 4. That was an action by a married woman against the sheriff for taking personal property on an execution against her husband. She claimed the property as her separate estate, and on the trial testified that at the time it was purchased she had money in the Bleecker Street Savings Bank, and had checked money out of the bank to pay bills. The plaintiff had a verdict. It was discovered, after the •trial, that at the time in question she had no money in the bank. On proof of that, a new trial was granted, and the order was. affirmed at the general term.

It is to be further observed that the defendant’s answer in the case before us did not put the plaintiff on-inquiry as to the bank account or checks now stated in the moving papers. No want of diligence can therefore be imputed to the plaintiff.

The order granting a new trial should be affirmed, with costs.

Reynolds, J., dissented.

Order affirmed, with costs.  