
    JAMES D. FOWLER, et al., Plaintiffs and Respondents, v. JOHN KELLY, Sheriff, Defendant and Appellant.
    NEWLY DISCOVERED EVIDENCE.
    New trial, not granted on ground of, when.*
    1. Admissions l>y parties since trial.
    
    Not sufficient ground when fully met.
    3. Facts discovered since trial.
    
    Not sufficient, when it appears that such facts do not necessarily bear upon the issues insolved.
    * Note.—The principle upon which ''he decision rests, is that in addition to other requisites it must appear that there is a fimprobability that the evidence claimed to have been newly-discovered, will change the result on a new trial. 3 Graham on New Trials, 1094, 109.x
    
      
      Decided February 4, 1878.
    Before Curtis, Ck. J., and Sedgwiok, J.
    Appeal from order denying motion for new trial on ground of newly-discovered evidence.
    This action is brought against the sheriff to recover the value of twenty hogsheads of molasses, seized by him about June 6, 1867, under an attachment issued on June 6, 1867, against the property of Thomas R. Gordon, in favor of Charles S. Archer, Washington Archer, and Pitt T. Tucker.
    Plaintiffs had a verdict. A motion for a new trial was denied. Judgment was thereupon entered on the verdict. On appeal from the judgment, and order denying the motion for a new trial, both were affirmed.
    Thereafter a motion was made for a new trial on the ground of newly-discovered evidence. This motion was denied, and the present appeal is taken from the order of denial.
    On the trial one of the plaintiffs testified “ that the molasses ” in question “was not gauged because there had been no sale.”
    And the following delivery order was also put in evidence:
    “To Merchants’ Line steamers. No. 2016. Deliver to J. R Gordon, E. A., 40 hhds. of molasses ex Key West. N. Y., June 1, 1867.”
    After the affirmance of the judgment, the indemnitors of the defendants employed a detective, who, after considerable search, found a firm of gaugers who, on June 7, 1867, at pier 4, North River, gauged for the plaintiff 40 hogsheads of molasses, ex Key West, P. & Co. '
    This fact was sworn to by the detective, in an affidavit made by him, and was also proved by the two gaugers, who, being unwilling witnesses, were examined before a referee, under an order obtained for that purpose.
    From the affidavit of the detective, and the testimony of the gaugers, it appeared that the firm of gaugers kept a book called a gauger’s book, which contained entries of the gauging made by them ; that there was an evident desire to withhold this book ; that the book, when finally obtained, showed the following entry:
    7.
    “Fowler & Jova, Pier 4 IST. E. C. 40 Hhds. molasses. Ex Key West. . F. & Co.”
    Then followed four columns of figures ; and :
    “5766-502-5264, hf C.”
    That, although the whole entry was in the handwriting of the witness, one of the gaugers, yet he swore that he had not the slightest remembrance of gauging any molasses for Fowler & Jova, in June, 1867, or of gauging any molasses for them, or any one at Pier 4 1ST. E. The detective in his affidavit also swore that the gauger, Webb, told him that the molasses referred to in the above entry in the gaugers’ book, was gauged for Cordon that the direction so to gauge was on the original order which had been destroyed, as was usual; he al&o swore that he had several interviews with Jova, one of the plaintiffs; that Jova in fact seemed willing to impart information, that on the second interview he (the detective) “showed Jova the bill of lading of forty hogsheads of molasses by the steamer Key West, and Mr. Jova said that this was the molasses he had spoken of” (in a previous interview, as the detective swears, he had spoken of a sale of 40 hogsheads of molasses, in June, 1867, to a distiller named Cordon) as sold to said Cordon, “ and that nothing had been received on account of that sale; that he (the detective) subsequently asked Jova to make an affidavit, and Jova said he would not, until he had examined the books, and he had no time then to do so, and would consult with plaintiff Fowler; that he (the detective) again called on Jova, who said he had never had time to fully talk with Fowler ; that on the same interview, upon being again requested to make the affidavit, he said, “No, I am advised by Mr. Fowler not to sign any papers.” .
    One of the sheriff’s indemnitors, and Mr. John D. McCormick, made affidavits to the effect that they are well acquainted with the trade of dealing in molasses, and familiar with the trade in regard to gauging of molasses, that the custom of the trade, generally, is to gauge the various packages, only after or upon their sale. Mr. McCormick’s affidavit set forth that this custom is so general and uniform, and has become so well established, that the gauge marks have come to be, and are indications that a sale has been had of the parcels on which they appear, since the arrival of the same at this port, and in the absence of other information showing the facts to be otherwise, said marks would be deemed by all dealers to be evidence that such packages had changed possession upon sale.
    The motion for a new trial, on the grounds of newly-discovered evidence was based on these affidavits, and the examination of the gaugers before the referee, as showing the evidence claimed to have been newly discovered. 6
    
    The motion was opposed on the affidavit of Mr. Jova, who fully met all the statements made in the detective’s affidavit, concerning interviews between them; also on the affidavits of Fowler, one of the plaintiffs, and of said Gordon, to the effect that the molasses referred to in the above entry in the gauger’s book was not sold to said Gordon, Mr. Fowler swearing that it was sold to a man named Dougherty.
    
      On the motion, it was argued that the 40 hogsheads mentioned in the entry in the gaugers’ book, were those referred to in the above order, No. 2016, and that the twenty seized were a part of them.
    Vanderpoel, Green & Cuming, attorneys, and Robert D. Green, of counsel, for appellant.
    
      Henry Daily, Jr., attorney, and of counsel, for respondents.
   By the Court.—Sedgwick, J.

—The only fact on which a new trial could be ordered is the face of the gaugers’ book. The affidavit of the detective, opposed, as it is, by answering affidavits, is not ground enough. The manner in which the gaugers avoid testifying with candor, is, of course, discreditable to them, but on such a motion that does not avail defendant. He must show the new facts by the witnesses themselves, and here the gaugers are his witnesses.

The gaugers’ book contains the gauge of forty hogsheads of molasses for the plaintiff, on June 7, 1867, ex Key West, marked ,F. & Co., made at pier No. 4, on the North River. The defendant shows that by the practice of the trade, having rare exceptions, a gauging was not directed, unless it was needed to consummate a sale which had been made, so far as the bargain wént. If this be so—if this case did not present an exception, if even the memorandum proves that a sale had been made to G-ordon, the evidence on the trial shows the recovery was had upon a lot which had bean removed from pier 4, had been placed in the warehouse, and had been seized by the sheriff (that seizure being the ground of the action) on June 6.

If one of the plaintiffs did not swear on the motion that'the lot gauged on June 7, was sold to Dougherty, one could easily entertain the idea that the gauging disclosed in the book did comprise the twenty-two hogsheads in question, in spite of the date and the mark. Even then, if it was possible that it should have been ordered to accompany the very peculiar arrangement that the plaintiff’s case on the trial showed existed between them and Gordon, a new trial could not be granted. The affidavit, having nothing to oppose it, must be taken to show that the lot referred lo in the book went to Dougherty.

The order appealed from is affirmed, with costs.

Curtis, Ch. J., concurred.  