
    The People of the State of New York, Respondent, v. Russell E. Holmes, Appellant.
    
      Trespass upon the Forest Preserve — when a new trial. will he granted for newly-dis- . covered evidence.
    
    Where, after the trial of an action brought under the provisions of section 380' . of chapter 488 of the Laws of 1893, as amended by chapter 895 of the Laws-of 1895, in which the defendant was charged with cutting and removing trees-from the Forest Preserve, and at which it was not disputed that the land upon, which the trees were cut was embraced within such preserve, the defendant, against whom judgment was entered, applies to the court for a new trial on the ground that after the trial ho found reason to believe that he was mistaken as to the lot from which the timber was taken, and that by a careful survey he-had ascertained that it was taken" from a lot other than the one named in the complaint, and one to which the State had no title, in support of which allegation he produces the affidavits of a surveyor and other witnesses, a case is presented justifying the granting of a new trial on the ground of newly-discovered evidence. '
    Appeal by the defendant, Russell E. Holmes, from an order of the Supreme Court, made at. the Clinton Special Term and entered in the office of the clerk of the county of Fulton on the 9th day of' March, 1898, denying the defendant’s motion for a new trial upon the ground of newly-discovered evidence.
    
      N. H. Anibal, for the appellant.
    
      T. E. Hancock, Attorney-General, and J. Newton Fiero, for the respondent.
   Putnam, J.:

This action was brought by the Board of Fisheries, Game and Forest, in the name of the People, under the "provisions of section 280, chapter 488, Laws of 1892, as amended by chapter 395, Laws-o£ 1895, by which such board was authorized to bring such an action. “ to prevent trespass upon, or injury to, the forest preserve and recover damages therefor,” and also against any persbn for cutting or carrying away, or causing or assisting to cut, any tree or timber within the forest preserve, or any bark thereupon, or removing any tree, timber or bark, or any portion thereof, from such forest preserve.”

It was alleged in the complaint that the plaintiff was the owner in the year 1894 of lot Ho. 68, subdivision 10, Glen, Bleeker and Lansing Patent, and that the defendant, at the times mentioned, wrongfully and unlawfully and without right or authority cut, carried away, caused to be cut and.earned away and assisted in cutting and removing and converting to his own use timber and logs remaining on said premises, the property of the State of New York, as follows, namely: Two thousand trees. That such trees were of the value of five dollars each.”

The defendant on the trial contested the validity of plaintiff’s title to the premises described in the complaint on the groúnd of the invalidity of the tax sale on which the same was based, and also denied that he ever entered on said premises or removed timber therefrom, averring that he obtained said timber by purchase from one Ralph Glasgow, who claimed to be the owner of said lot, and who delivered the same to the defendant.

A judgment was obtained against the defendant for $130, besides interest and costs.

After the judgment had been entered in the action and an appeal taken therefrom-, the defendant made a motion for a new trial on the ground of newly-discovered evidence. From an order denying such motion an appeal has been taken to this court.

On the trial it was assumed by both parties that the timber, with the cutting and removing of which tbe defendant was sought to be charged, was taken from lot 68, subdivision 10, Glen, Bleeker and Lansing Patent, the premises described in the complaint.

In his moving affidavit the defendant sets forth in substance, although his answer contained a denial of that fact, that at the time of the trial of the action he supposed the timber delivered him by Mr. Glasgow was cut and taken from the land described in the complaint. After the trial he found reason to believe that he was mistaken, and that the timber was in fact taken from lot 69 instead of lot 68. On causing a careful survey to be made, he ascertained that such was the fact. ' He produced- the evidence of John B. Koetteritz, a súrveyor, and the affidavits óf other witnesses, which tend to show that the timber delivered to him by Mr. Glasgow was taken from lot 69 and not from land owned by the State, and hence, if a new trial shall be granted and the testimony' of said' witnesses be believed, a different result would probably ensue from that reached on the first trial.

The principles governing applications for new trials on the ground of newly-discovered evidence are well settled.- “ It must appear that the evidence has been discovered since the trial; that- it could not have been obtained upon the former trial by the .exercise of reasonable diligence; that it is material to the issue and goes to the merits of the case ; that it is no.t merely cumulative, and that its character is such that it would probably have changed the result. When these facts appear and the court is satisfied that the' ends of justice will be promoted by allowing the moving party an opportunity to present the newly-discovered evidence the motion will be granted.” (Glassford v. Lewis, 82 Hun, 46, 48; Roberts v. Johnstown Bank, 38 N. Y. St. Repr. 563.) In the cases cited it is held that such motions are not governed by any well-defined rules, but depend in great degree upon the peculiar circumstances of each case. And it has been held that such a motion can be granted under certain circumstances, although the newly discovered evidence may be cumulative. (Vollkommer v. Nassau, Electric R. R. Co., 23 App. Div. 88.)

The affidavits presented to: the court below showed that the evidence on which the defendant based his application had been discovered since the trial. We think they also fairly showed that the defendant had not been guilty of laches in not discovering the facts as to the true boundary of lot 68 before the period he did. As the fact that the logs in question were cut on lot 68 was assumed by both parties on the -trial, and there was no. contest in that regard, the newly-discovered evidence cannot be deemed cumulative ; that it is material and that its character is such that it would very likely change the result is probable.

The affidavits on which the defendant relied on the motion show that, before and at the time of the tidal of the cáse, he labored under a mistake of fact as to the boundaries of lot .68, to which the plaintiff had title, and hence failed to contest the claim that the logs, with the valué of which he was charged, came therefromand that, on a new trial, he will he able to produce evidence tending to show that such logs were cut and taken from lot 69, to which the State had no title; that the mistake of the defendant as to the location of lot No. 68 was not due to a lack of diligence on Ms .part in preparing for the trial.

We think the defendant should have an opportunity to submit this newly-discovered evidence to a jury; that under all the circumstances and in furtherance of justice the motion should be granted.

The order should he reversed, -with ten dollars costs and disbursements to the appellant, and the motion for a new trial granted on payment by the defendant to the plaintiff of ten dollars costs of the motion and the costs entered in the judgment here and below.

All concurred.

Order reversed, with ten dollars costs and disbursements to' the appellant, and motion for a new trial granted upon payment by the defendant to the plaintiff of ten dollars costs of the motion and the costs of the judgment here and below.  