
    Joseph J. Francis vs. Lown Howayeck
    No. 84064.
   TANNER, J.

This case is now heard upon a petition for a new trial on the ground of newly discovered evidence.

The newly discovered evidence alleged is that the witness Hsaga How-ayeck, in a ease brought by her against a third party in an action of negligence on the case, claimed as an item of damage that she herself had employed the plaintiff at a cost of $18 a week for 17 weeks. An examination of the evidence in the case, however, shows that the defendant’s attorney knew of this claim during the trial of this case. He asked this witness if she had not made this claim in her accident case and stated that he expected to prove that the plaintiff had entered into an arrangement with this witness or knew about a claim for settlement in full that he was to participate in if she got a settlement.

For defendant: Michael Addeo.

For plaintiff: Ernest L. Shein.

It thus appears to us that the defendant’s attorney knew of what he calls the false claim of thjs witness contrary to her testimony in this case and could have presented testimony to that effect at the trial of this case.

Therefore, under the well-known rule he could not now secure a new trial on the claim of newly discovered evidence.

Even if this were not so, we do not think that we could grant a new trial. Even if this witness did make such a claim, it may have been upon her ignorant idea that she could collect the amount of her claim in her own name rather than leave her husband to institute a separate suit for the same, and even if this be not true we think the probability is that the claim of the plaintiff that he was hired by the defendant through the agency of the witness, the wife of the defendant, is the true theory in the case.

The Court in its decision inadvertently omitted to deduct the sum of $60 which was admittedly paid on the plaintiff’s claim, and the judgment for the plaintiff should be reduced by this amount although we presume that under the decisions in this State we ourselves cannot do this. We understand, however, that it is conceded by the plaintiff that this reduction should be made.

Motion for new trial denied.  