
    CHRISTIAN F. HOLTZ, Plaintiff and Respondent, v. HENRY G. SCHMIDT and EMIL CUNTZ, Defendants and Appellants.
    New trial.
    1. Perjury of witness called on behalf of successful party, motion for new trial.
    (a) General rule as to.
    
    1. Conviction for perjury necessary before a motion for a new trial will be granted on the ground of perjury of a witness.
    
      (a) Exception to rule, what does not form.
    1. Voluntary confession of Ms perjury, and an affidavit of the witness to that effect, does not,
    ESPECIALLY
    where one of the unsuccessful parties made admissions on the trial to about the same effect as the testimony of the witness sought to be falsified.
    
      Before SPEinand Freedman, JJ.
    
      Decided November 4, 1878.
    Appeal by defendants, from an order denying defendants’ motion for a new trial made on a case, exceptions and affidavits.
    The motion was heard before the Hon. John ■Sedgwick, who delivered the following opinion :
    “ Sedgwick, J. The case of Fabriliris v. Cook (3 Burr. 1771), does not support the present application. In that case many circumstances were shown tó have been falsely sworn to, and the decision may have been placed as well upon surprise as any ground ; at.any rate it was not placed upon the ground that a witness on the trial made an -affidavit that his testimony was false. The utmost that is certain in such a case is that he is not a credible witness when he makes the affidavit. In this case one circumstance peculiarly enforces the general rule, that there must have been a conviction before a motion for a new trial on the ground of perjury will be granted. It is apparent that the affiant is not to be proceeded against for his alleged perjury, and he makes the affidavit with the belief that he will not be prosecuted by the defendants. So much the easier for him to furnish the affidavit. The motion is denied with costs.”
    Tracy, Olmsted, & Tracy, attorneys, and Dwight Ü. Olmsted, of counsel, for appellant, on motion for new trial.
    I. The conviction of a witness of perjury on an indictment, is not a necessary preliminary to a motion for a new trial on that ground (Fabrilius v. Cock, 3 Burr. 1771). In Williams vh New Trials, the learned editor, after citing the cases in which it has been held that a conviction was necessary, remarks : “Probably, however, the practice on this subject is much less rigid than these cases would indicate ” (Hilliard on New Trials, 505, § 23 [2d ed.]). “New trials have been frequently granted where there has been strong reason to suspect that perjury has been committed” (Weston, J., l Me.[l Greenl.] 322).
    II. The confession of perjury by a witness should induce the court to consider favorably a motion for a new trial; especially as the granting of the motion is a matter of discretion with the court "(Donley v. Graham, 48 N. Y. [3 Sick.] 658; Tyler v. Hornbeck, 48 Barb. 197).
    
      Charles "Wehle, attorney, and of counsel, for respondent, among other things, urged:—I.
    The legal presumptions are, that the statement given by the witness in his affidavit, rather than the testimony given in open court, was false (Steinbach v. Columbian Ins. Co., 2 Cai. 129; Jackson v. Bowen, 3 Johns. Ch. [2d ed.] 596).
   By the Court.—Freedman, J.

The motion for a new trial, on the case and exceptions, and certain affidavits imputing perjury to one of plaintiff’s witnesses, was properly denied for the reasons assigned by the learned judge below. Upon the case as made, and especially in view of the admissions made at the trial by the defendant Schmidt, which were to about the same effect as the testimony of the witness which is now sought to be falsified by a mere affidavit, the legal inference is, that the subsequent statement in the affidavit of the witness rather than his testimony given at the trial, is false.

The order appealed from should be affirmed, with costs.

Speir, J., concurred.  