
    Annie Reid, Respondent, v. John G. L. Gaedeke, as Executor, etc., of Elizabeth Schneider Koetter, Deceased, Appellant.
    ' Motion for a, new trial on the ground of newly-discovered evidence, when denied— costs.-
    
    After a recovery by the plaintiff for the full amount claimed, in an action for board alleged to have been furnished to the defendant’s testatrix, based upon evidence tending to show that the testatrix had stayed with the plaintiff during the whole time embraced in the latter’s claim, with the exception of a short period, a motion for a new trial made by the defendant on the ground that he has, since the trial, discovered evidence showing that the deceased was absent and boarded elsewhere for a considerable portion of the time mentioned, should not be granted, where it is apparent from the nature of the testimony given in the case that the defendant was aware of the occasional absence of his testatrix, and that ordinary care and diligence in the preparation of the case for trial would have enabled him to make the, proof which he seeks to present upon a second trial.
    Full costs are allowed where such a motion is made upon a case.
    
      Appeal by the defendant, John G. L. Gaedeke, as executor, etc.,, of Elizabeth Schneider Koetter, deceased,, from an order' of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the éth day of October, 1898, denying the defendant’s motion for a new trial made upon the ground of newly-discovered evidence.
    
      Wm. J. ■Lvpjpmawn, for the appellant.
    
      Henry Heearmbner, for the respondent.
   Van Brunt, P. J. :

This action was brought to recover upon two causes of action, one • for board alleged to have been furnished by the plaintiff to the decedent, and this is the only cause of action to which the present appeal relates.

The complaint alleges that from the 1st day of October, 1889, until the 1st day of April, 1892, a period of 132 weeks, Elizabeth Schneider Koetter occupied certain rooms in the plaintiff’s premises and was furnished with board by her. There was evidence tending to show' that the deceased stayed the whole of these 132 weeks (except a short' period of time) with the plaintiff. A recovery was had for the amount of the claim, and a motion was made for a new ■ trial upon the ground that the defendant has since the trial discovered evidence showing that the deceased was absent and boarding elsewhere for a considerable portion of the time mentioned. Upon the hearing of the motion it was denied upon the ground that the defendant would have been in position . to make the proof that • he now presents had he made a proper preparation of the case for trial, for which there was abundant time. .With this conclusion we see no reason to differ. The evidence introduced upon the trial indicated absences of the decedent from the plaintiff’s house when she was at Elizabeth, and the defendant well knew that, she had relatives residing there, being the persons with whom it is now claimed she was boarding for various periods during the time involved in the plaintiff’s claim. ■ It was also indicated by the evidence of the plaintiff’s brother 'that the deceased was absent occasionally, and it is apparent from the nature, of the testimony in the case that the defendant was aware of this fact, and no effort whatever was made to get any evidence in respect thereto until after the trial.

Although claims against the estate of a decedent are necessarily scrutinized with care, yet the ordinary rules governing the procuring of evidence are as applicable to these cases as to any others. There does not seem to have been the slightest attempt on the part of the defendant to investigate the circumstances of which they had notice, and it is only because their gravity has been called to their attention, subsequent to the trial, that they have been deemed of so much importance. Ordinary diligence and care in the preparation of this case for trial should have induced the defendant to investigate these circumstances in respect to absence, of which he was well aware, the only matter in respect to which he might have been ignorant being their duration. If he has learned, subsequent to the trial, that they were longer than lie had supposed, that forms no ground for a new trial, because he might have ascertained those facts just as well before the trial as after.

The motion for a new-trial upon newly-discovered evidence being made upon the case (Code Civ. Proc. § 1002), the plaintiff is entitled to full costs. (Bolte v. Third Ave. R. R. Co., post, p. 234.)

The order should be affirmed, with costs. '

Patterson, O’Brien, Ingraham and McLaughlin, JJ., concurred.

Order affirmed, with costs.  