
    Morris Fishbein, Plaintiff, Respondent, v. Abraham Schwarzbart, Defendant, Appellant.
    Supreme Court, Appellate Term, First Department,
    June 27, 1924.
    Trial — action on promissory note — motion for new trial on ground of newly-discovered evidence — date of discount fixed by testimony of plaintiff’s witness at variance with new testimony — new trial granted where defendant could not have anticipated new testimony.
    A motion for a new trial on the ground of newly-discovered evidence should be granted the defendant in an action on a promissory note where the newly-discovered evidence consists of defendant’s discovery that the discount of the note, which plaintiff’s only disinterested witness at the trial fixed as some time in July, 1920, never occurred, and where the defendant could not have anticipated the testimony of the witness.
    Mullan, J., dissents.
    Appeal by defendant from an order of the Municipal Court of the city of New York, borough of Manhattan, fourth district, denying his motion for a new trial on the ground of newly-discovered evidence.
    
      Myers & Kuiner (David C. Myers, of counsel), for the appellant.
    
      Korkus & Korkus (Edwin F. Korkus, of counsel), for the respondent.-
   Per Curiam.

This action is on a promissory note, the plaintiff contending, in substance, that he obtained the cash therefor on or about July 21, 1920, the defendant claiming that it was delivered for what is substantially an illegal consideration sometime in .September, 1920.

At the trial plaintiff’s only disinterested witnesses identified the date as being in July when he delivered the cash for the note to the plaintiff, the witness himself testifying that he had forthwith discounted it at his own bank. Subsequently the defendant discovered that no such discount transaction had occurred, as is proved by the affidavit of the auditor of the bank.

This appears to me to be clearly newly-discovered evidence. Defendant could not have anticipated that the date of the negotiation of the note would be established by plaintiff through a third party, or that the third party would testify that he had cashed the note at his bank. Moreover, it is manifestly material in view of the fact that it was the only testimony which fixed the date of negotiation absolutely by what is practically a physical fact. Its importance is emphasized by the answering affidavit of the witness whose only explanation is that he “ may have been mistaken in testifying after a lapse of three years * * * that he had procured the money from a bank.”

Order reversed, motion granted, judgment vacated, and a new trial ordered, with thirty dollars costs to abide the event.

Bijur and Levy, JJ., concur; Mullan, J., dissents.

Order reversed, judgment vacated and new trial ordered.  