
    Jackson, ex dem. Gardner and others, against Laird.
    yn a motisn for-ac“f0„ ejec£ discovery of new and material evidence, the”6 Affidavits wbo claimed ti!le.t0 the land in tlie possession of B. his tenant, had the care and management of the defence of the suit, and "he trkv^that the\rkd ^but í,iat c- did aY know, until atter the trial, tliíit F. knew ot* could testify the materiaiTthougii SVaic^Telimt,1 who was "ot present at the trial, did know, before the tria), what F. could triaT was^granL ¿lief thstate'i ti,e^suitL'boins t0 change a possession ot suverai years.
    THIS was ah action of ejectment, for lot No. 87. in th e township of Camillas. The cause was tried, at the last Onondaga circuit, and a verdict was found for the plaintiff.
    . , A motion was made, m behalf of the defendant, to set aside the verdict and for a new trial, on the discovery of new and material evidence,
    lt appeared, from the affidavits which were read, that 11 7 Eden B. Corn-well and Leonard Barton claimed title to , , , _ , , . , , the land; that the defendant was their tenant, and had , . . . - , , _ ,, been m possession about five years; and that Cornwell had the care and management of the defeftce of the suit,
    The lessor of the plaintiff claimed title under one George D. Rotter, or more commonly called De Rotter . Gardner, the soldier to whom' the lot was patented; and A he proved that he was a black man and had lived in Ex-eter, in Rhode Island, and enlisted in Col. Green’s regiment; and that when the army was at White Plains, he left the Rhode-Island regiment, and enlisted in the New- , York line, as the witness had heard, &c. and that he died „ m Exeter, and that the lessors were his children,-
    
      Cornwell, in his affidavit, swore, that though Andrew Fink was a witness, at the trial of the cause, yet he did not know that Fink knew, or could testify, any thing material in the cause, until after the trial. But , it appeared from the affidavits read dn the part of the lessor, that the defendant, who was not however present at the trial, knew before the trial what Fink could testify.
    
      Fink, in his affidavit, swore, that he was a captain in the first New-York regiment, in the revolutionary war j and that he enlisted George de Rotter, as a private in his company, at Warensburgh, the 11th- March, 1776,- and. 
      De Rotter was a man of brown complexion, with black eyflg aR j ^iacic hair, and was born at Rhode Island, &c. as appeared from the enlistment roll, in the witness’s possession, and that he died, at Saratoga, in January, 1777.
    
   Per Curiam.

The testimony of Fink is material, to prove that the ancestor of the lessors of the plaintiff is not the soldier who drew the lot, and that they have no title-.

It is true, that Fink was present at the trial, and- that the defendant knew beforehand what he could prove. But the defendant was not present at the trial, and was a tenant under Cornwell and Barton, to whom, he had abandoned the defence; and Cornwell swears, that he knew nothing of this testimony until after the trial.The suit is to change a possession of several years’ standing, and that is an auxiliary consideration in support of the motion. The motion is therefore granted,, on payment of costs.  