
    Fry v. Bennett.
    
    When a motion for a new trial is made on á ease, and it appears that a material fact has been found on insufficient evidence, the court, in its discretion, may receive proof of the fact at the argument, and refuse a new trial, if such fact he proved by a record or other documentary evidence, incontrovertible.in it3 character. But this rule has no application to a motion for a new trial on a hill of exceptions.
    Evidence -will not he so received of a fact not sufficiently proved, when it consists of oral evidence, which, from its nature, is liable to be contradicted and impeached.
    Much more will the court refuse, after a new trial has been ordered upon full argument, to vacate such order and take such proof at the bar of the court, or allow it to be given before a referee, and if satisfactory, allow the bill of exceptions to be amended in respect to the evidence, and then order a reargument. There is no precedent for such a proceeding. If the court had the power to permit it, such power ought not to be exercised. Great irregularities and inconvenience would be the result.
    (Before all the Justices.)
    General Term, March, 1855.
    Aftes the General Term had ordered a new trial in this action, for the reason that the deposition of Strakosch, which had been taken de bene esse, was allowed to be read without sufficient proof of his continued absence from the state having been first given, the plaintiff, on due notice and on affidavits served therewith, moved the General Term, for an order permitting him to prove at the bar of the court, or before a referee to be appointed, that Strakosch left the state immediately after he was so examined, and continued so absent until after the trial, (which is reported, anie.)
    
    That on such fact being satisfactorily proved, the order granting a new trial should be vacated, and a reargument ordered, and that the case or bill of exceptions should be so amended, that it would appear thereby, that such fact was proved at the trial before the deposition was permitted to be read in evidence. The affidavits on which the motion was made, showed very clearly that Stra-kosch left the state immediately after his deposition was taken, and continued absent from, and out of it, until after the trial.
    The plaintiff’s counsel, on arguing the motion, was permitted to reargue the question whether the evidence given at the trial, of such absence, was not sufficient to authorize the deposition, to be read.
    
      A. L. Jordan and F. A. Sherman for the motion.
    The proof of the absence of Strakosch from the state, is now, and was at the trial, addressed solely to the court and not to the jury, and therefore could not affect the verdict. The proof showing, both now and at the trial, that Strakosch was out of the state, and the proof at the trial, slight as it was, being satisfactory to the Judge before the deposition was read to the jury, if it is now satisfactory to the court, the order granting a new trial should be vacated. (Roche v. Wood, 7 How. Pr. R. 416, Morgan v. Avery, 7 Barb. 656.) And the court may, after granting a new trial, even on an ex parte application, order a reargument and allow amendments in substance, and then reverse their own judgment. (Slocum v. Fairchild, 1 Hill, 294.) Under the Code .a new trial ■ ought not to be granted on the ground that the absence of .Stra-kosch was not satisfactorily proved at the trial, if it is satisfactorily proved now. (§§ 176, 467, 173, 174,. and 271, subd. 2.)
    
      D. D. Field, J. Townsend, and B. Galbraith opposed.
    Oakley, Ch. J., (Orally.) — On last Saturday a motion was made and argued in the case of Fry against Bennett. Fry, as is well known, sued Bennett for a series of libels .on his character and conduct as the manager of an opera. Trial was had of that suit, and it resulted in a verdict against defendant. In the course of that trial, the deposition of one Strakosch was offered in evidence. He had been examined by virtue of an order made for that purpose. His deposition was offered to be read, and it was received, under the general objection on the part of defendant’s counsel that the absence of the party was not satisfactorily proved. On the trial of the cause, an exception was taken to the ruling of the Judge, admitting that deposition, and a bill of exceptions, containing all the evidence in the matter, was brought before the court and argued. The court ordered a new trial_ solely on the ground of the improper admission of that deposition. Various other questions of importance and magnitude were involved in the case, in respect to some of which the Judges who decided the case expressed an opinion; but, as I understand it, the reversal of the judgment and the ordering of a new trial rested on no other ground than that just referred to. After this argument, and after the decision of the case, an order for a new trial was entered. The plaintiff now proposes to produce testimony at the bar of the court, in order to remedy the defect in the evidence which existed at the trial, in relation .to the absence of Mr. Strakosch. He pro-posea to produce witnesses and bare them examined, and he has presented the affidavits of these witnesses,, going to establish very clearly that this man was,, in fáct,. absent at. the time of the trial; and which evidence, if it had been produced on the trial, would be sufficient to have authorized the introduction of the deposition.
    In the discussion which took place last Saturday on this matter, counsel for plaintiff was permitted — perhaps a little irregularly— to enter into an argument as to the correctness of the decision of the court in admitting this deposition. The court heard him, as much perhaps out of deference to counsel as from any other reason. He also entered into a similar discussion, intending to show that the Judges who heard the case on the bill of exceptions, had come to a conclusion which was contrary to law. In disposing of this matter now, I take occasion to say that the Judges who made that decision, and ordered a new trial, and to whom these suggestions were made, see no reason to alter the views which they then entertained in relation to this matter. The question which counsel, in his argument, presented, did not naturally or positively connect itself with the motion before the court. Still, however, as the counsel entered into an argument on the subject, it is proper to say here, that the Judges who so decided have not, in those suggestions, discovered any reason to doubt the correctness of the conclusion at which they arrived in that case.
    Now, in respect to the points on which this motion turns, we have examined the matter, and we cannot see any just ground on which we can grant this motion. It has, no doubt, often happened — I know it myself in my own experience, and I know it as a matter of common expediency — that when, on the trial of the cause, there has been some omission of evidence, which afterwards, on an examination of the case at bar, is discovered to be material, it is within the discretion of the court to permit such evidence to be supplied. It is done, for instance, in the case of a judgment record, or of a deed, or of any documents as to which there can be no dispute, and which can lead to no conflict of testimony. The courts have occasionally, when such matters have come before them, sent a case back for a new trial; but that is seldom done when the purpose is merely to introduce a document which could, in no possible way, have influence upon the minds of the jury. The attempt now is to carry this practice further. " It is attempted to have an application of tbis bind made to tbe court after judgment in tbe case. After tbe case is decided, and a new trial ordered, it is attempted to introduce evidence on a point wbicb might be tbe subject of conflicting testimony. Tbus, witnesses wbom tbe plaintiff’s counsel proposes to produce before tbe court and examine, might, for all we know, be contradicted, and successfully contradicted, by others. At all events, tbe admission of such evidence would open tbe door for a trial on matters of fact wbicb were not sufficiently proved at tbe trial; and tbis would be clearly inconvenient, and not only that, but highly improper. We are quite of opinion, therefore, that we cannot extend tbe practice on tbis subject beyond tbe cases in wbicb it has been hitherto adopted; that is, beyond cases in wbicb, when a case is brought before tbe court, application is made to supply a defect in tbe evidence — forma! merely — and wbicb evidence, when produced, verifies itself, and is necessary, as a matter of record, to sustain tbe party who obtained tbe verdict. Tbis is allowed to be done when it is unnecessary and inexpedient to put tbe parties to tbe expense of a new trial, and where tbe proposed supplementary evidence is merely a paper wbicb cannot be disputed. In tbis practice there is nothing unsafe or inconvenient; but it is easy to see that if we were to go further, and undertake to enter into inquiries in relation to evidence wbicb in its very nature is controvertible, where opposite witnesses might be called, and where it would be for the court to weigh tbe credit of tbe witnesses, such a practice would lead to great irregularity. On that ground, therefore, it is quite clear that tbis motion cannot be granted. It is quite clear, also, that such a motion never has been granted after judgment being given. Tbe application is, in fact, to open a judgment wbicb has been entered, to set aside tbe order for a new trial, to allow additional facts to be proved, and to bring tbe matter up de novo. • In tbe judgment of tbe court, that would be tbe effect of granting tbis motion. Now, it is much better that tbe parties be put to tbe inconvenience of a new trial, in wbicb tbis defective proof in regard to Strakosch’s deposition may be remedied. On tbe whole, therefore, tbe motion must be denied. Tbe reasons for tbis decision are given more extensively in detail in tbe written opinion, wbicb can be resorted to by parties interested in it.
   By the Coubt.

Boswobth, J.

We have no doubt that the deposition of Strakosch was improperly admitted as evidence, and that a new trial should have been granted for that cause. It is now contended by the plaintiff, that, conceding this to be so, yet as the evidence on which its-admissibility depends is, by statute, to be addressed to the court only, and is not to be, and is not, considered by the jury in forming their verdict, and as it is now made apparent by satisfactory proof, or can be made so, that Strakosch was continuously absent from the state until after the trial, the court should now allow the fact to be proved; and that if conclusive proof is given, the order granting a new trial should be vacated, and a reargument ordered, and the case be so amended as to present on its face satisfactory proof of the fact of such absence.

The plaintiff relies mainly on that class of cases in which a party who has obtained a verdict on defective or insufficient proof of some fact, the existence of which depended on record or documentary evidence, has been allowed to supply the defect on the argument of a motion for a new trial, by producing a properly exemplified copy of the record or document. He cited 2 Sand. S. C. R. 719; 3 Barb. 429; 24 Wend.; 14 Wend. 126; 4 Wend. 591; 13 J. R. 517; 3 J. C. 125; 2 Metcalf, 64.

All of those cases, -except two, (3 Barb. 429, and 24 Wend. 14,) eame before -the--court on a ease made, and not on a bill of exceptions,--or upon a writ of error. In all-of them the defect was supplied on the argument, and before a decision was made by the court in -lane. And in all of them the point defectively proved at the trial was capable of being proved by -record evidence, which could not have been controverted had it been produced at the proper time, and evidence of the latter kind was produced and received on the argument in opposition to the motion for a new trial. It 'has -been expressly deeided, that .that rule does not apply to a bill of exceptions. In Hart v. Coltrain, (24 Wend. 14,) the court stated the rule in-these -terms-:

“A motion for a new trial,-on a case made, is addressed to the sound discretion of the court-; and where the party relies on some defect in the proofs, which .is afterwards supplied by evidence which could not have been -controverted had it been produced at the proper time, and-the court see that a new trial could be of no use, the motion would be denied. (Burt v. Place, 4 Wend. 597, and cases cited.) But tbis rule does not apply to a bill of exceptions, and we cannot look into tbe affidavit.”

In that case an exemplification of an affidavit made by an administrator before a Judge of tbe Court of Probate was produced at tbe argument, wbicb, it was claimed, was sufficient to confer jurisdiction to make an order, tbe validity of wbicb was questioned at tbe trial, on tbe ground that it was not then shown that jurisdiction to make it bad been acquired. But as tbe cause was before tbe court on a bill of exceptions, and not on a case, tbe court refused to look at tbe exemplified copy, and ordered a new trial.

In Dresser v. Brooks, (3 Barb. 429,) tbis distinction does not appear to have been adverted to, and no reference is made to Hart v. Coltrain. Tbe only decisions cited are, 14 "Wend. 126, 13 ib. 524, and 5 ib. 535. In those causes tbe defeated party moved for a new trial on a case.

It may perhaps be said of Dresser v. Brooks, that although the report of it shows that exceptions were taken at the trial, yet it does not state that that case came before the court on a bill of exceptions. If before the court on a case, which reserved no right that it should be turned into a bill of exceptions, the decision made in it does not conflict with that made in Hart v. Coltrain. Ve have been referred to no case in which a reargument was ordered to allow such proof to be given after the verdict had been set aside and a new trial granted. Nor have we been referred to any case in which defective proof was allowed to be supplied on the argument of a motion for a new trial, even when such, proof was to be considered by the court only, if the fact to be proved was to be established by the viva voce testimony of witnesses, or by any evidence which in its nature was controvertible.

To allow such a motion, would assume that it was competent and not inexpedient for the court, after reversing a judgment upon an exception taken at the trial, and after both parties bad been heard upon it at the General Term, to vacate the judgment of reversal, and allow defective evidence to be supplied by prooís to be given at the General Term, provided the proofs related to a point upon which evidence was to be given to the court only, and then rehear the appeal and dispose of it as if such proof had been produced at the trial.

Tbe statute requires “ satisfactory proof” to be given at tbe trial; and unless it is there given* tbe party taking such a deposition has no right to read it at all. To grant this application, would be equivalent to bolding that, although there was confessedly no evidence given at the trial of the absence of the witness from the state, yet the court, on appeal, and on reviewing an exception taken to such an 'admission of a deposition, might, without any impropriety, allow witnesses to be examined at the General Term, to prove that, in point of fact, the person who had been examined de lene esse had continued absent from the state, so that his attendance could not be compelled by the ordinary process of law. Whether an appeal at the General Term is from an order denying a motion made for a new trial on a case, or from a decision of questions of law upon a bill of exceptions, we are of opinion that it would be improper, and highly inexpedient, to so extend and apply the rule as it would be necessary to do, to sustain this motion.

The motion is therefore denied, with costs.  