
    William H. Plyer, App’lt, v. The German American Insurance Company of the City of New York, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May 14, 1888.)
    
    1. Evidence — Contradictory statement made by witness—Examination BY ADVERSARY.
    A witness may be asked if he made a different statement as to a fact testified to on the trial without the papers containing the statement being produced. If the witness choose to answer, he may without error.
    2. New trial—Newly discovered evidence—When a ground for.
    In order to justify the granting of a new trial newly discovered evidence must not be cumulative, and the party seeking the new trial must not be chargeable with laches.
    Appeal from an order of a special term in Kings county denying the plaintiff’s motion for a new trial because of newly discovered evidence.
    
      T. C. & G. IV. Campbell, for app’lt; William D. Murray, for resp’t.
   Barnard, P. J.

—The policy covered the vessel insured “while lying at anchor in Cow Bay, Great Neck, L. I.” The case was mainly tried upon the question of fact whether the vessel at the time of the fire was lying at anchor or was beached at one end and never afloat at any state of the tide.

Upon the question the witnesses are numerous on each side and the testimony is irreconcilable. It is even difficult to harmonize the statements as resulting from an imperfect memory or from a lack of close observation. At the time of the application for insurance the insured vessel lay alongside of another vessel in the bay. After the insurance she was moored, and the divergence from this point is absolute.

The plaintiff’s witnesses state that the vessel was burned between high and low water mark. That the vessel was always aground at low water, and the proof tends to show on the part of the plaintiff that the vessel floated at high water. On the other hand, the defendant’s testimony tends to show that the shore where the vessel lay was bold; that the insured vessel drew very little water; that one end of her was floated up at high tide as high as she would go, and that she continued in that position until the time of the fire; that the vessel leaked, and when the tide fell the water ran out of her and that she was not at anchor.

Upon an issue thus litigated the verdict of the jury is binding upon an appellate court. There was evidence tending to show that the vessel was imperfectly watched, it being a condition that she should be in charge of a watchman. It was proven that one Olley was a watchman in the Gregory yard, near which the vessel lay, and that he watched this and other vessels. The judge submitted the question to the jury with the remark that upon this point there was no “evidence to contradict the plaintiff’s testimony.”

This was the proper course. It was not a matter of law, but was a fact to be found by the jury. The credibility of the witnesses was for the jury. Some of the plaintiff’s witnesses had made statements in writing varying from those made upon the trial. These statements were shown the witnesses and they admitted the statements, and the statements were read in evidence to impeach the trial evidence of these witnesses. This was in accordance with the rule of evidence. Romertz v. East River National Bank, 49 N. Y., 577.

A witness may be asked if he made a different statement as to a fact testified to on the trial, without the paper-being produced. If the witness choose to answer he may without error. The answer was made by McGinty in the negative and that did no harm to the plaintiff. It was, proper when the plaintiff offered the depositions taken before referee Gould at the instance of the plaintiff to take in the whole record. This included the statement annexed made by the witness Runde.

The case with the findings of the jury falls within the principle establed and recognized in Reid v. Lancaster Fire Insurance Company (90 N. Y., 382), and the judgment should be affirmed, with costs.

The motion for a new trial upon the ground of newly discovered evidence entirely falls within the rules governing such motions. The new evidence is stated to be to the affect that the fire burned off the fastening of the anchor and that the vessel floated in shore before she sank, a fact entirely at war with the whole evidence upon the trial; it cannot be true without discredit to a body of evidence, which was deemed true impliedly by both parties upon the trial. Another new fact stated is that after the fire holes were bored in the bottom of the vessel for the water to run out and that then they were plugged up and the vessel floated. Both these new facts were within the issue tried. All of the witnesses, but one, to prove additional facts were sworn on the trial, and the new facts cannot be harmonized with their then testimony. They were all witnesses favorable to the plaintiff, even zealous, but it is a sufficient answer to the application to apply the rule that the newly-discovered evidence must not be cumulative and the party seeking a new trial must not be chargeable with. laches. These new facts ought to have been proven on the former trial.

The motion should be denied, therefore, with ten dollars costs and disbursements.

Dykman and Pratt, JJ., concur.  