
    Sarah Brady, App’lt, v. Industrial Benefit Association, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 20, 1894.)
    
    1. Trial—Direction of verdict.
    Where the evidence of the plaintiff is not so inconsistent with that of the defendant as to raise a question of fact for the jury upon the issue, an exception to the direction of a verdict for defendant is not well taken.
    2. New trial—Newly discovered evidence.
    Newly discovered evidence, for the purpose of discrediting a witness, is not ground for granting new trial.
    Motion for new trial on exceptions ordered to be heard at general term in the first instance, and from an order denying a motion for a new trial on the ground of newly discovered evidence.
    
      Amasa J. Parker, for app’lt ; Walter S. MacGregor, for resp’t.
   Bradley, J.

—The action was brought by the plaintiff as beneficiary of a certificate of membership or policy issued by the defendant to Millard Fiero, October 13, 1890. He died April 12, 1892. The statements and representations of the assumed contained in his application of date October 10, 1890, were, by the. terms of the certificate and the by-laws of the defendant made the basis and part of the contract of the insurance, and were warranties on his part. Among the interrogatories, and his answers thereto, contained in the application, were the following: Q. Are you in good health? A. Good. Q. Are you usually in good health? A. Yes. Q. Are you free from every predisposition to disease? A. Yes. Q. How long since you required the services of a physician ? For what disease or trouble ? A. Never seriously sick. Q. Have you had, during the past five years, or are you subject to, any of the following diseases, or any not named herein : Spitting of blood (following with several other specified affliótions)? If yes, state fully. A. No. Q. Are you aware that, if any fraudulent or untrue answers have been made, or if any facts which should have been stated have been suppressed, that your certificate is null and void ? A. Yes.

By evidence on the part of the defendant it appeared that in 1888, and from time to time thereafter, Fiero was sick; that in the spring of 1889 he was so afflicted with hemorrhages of the lungs that blood came from the mouth quite freely, and his condition was feeble. And witnesses testified that in 1888 they talked with him about his sickness, and that he stated to them that he was subject to hemorrhages of the lungs. The facts thus proved constituted a breach of the warranty which was made the basis of the contract of insurance, and the truth of which was the condition upon which the validity of the defendant’s certificate or policy was dependent. Dwight v. Germania L. Ins. Co., 103 N. Y. 341; 3 St. Rep. 115; Clemans v. Supreme Assembly, 131 N. Y. 485 ; 43 St. Rep. 571; Boland v. Ind. Ben. Association, 74 Hun, 385; 56 St. Rep. 382. There was some evidence on the part of the plaintiff to the effect that the witnesses who gave it had seen Fiero frequently or occasionally in the years before mentioned and in 1890, prior to the time the certificate was issued; that he appeared to be physically in good health ; and that they had not known of his having been afflicted with hemorrhage of the lungs. It is not seen that this evidence was so inconsistent with that on the part of the defendant as to raise a question of fact for the jury upon the issue as to the truth of the representations of the assured in his application. The exception to the direction of a verdict for the defendant was not well taken. For do we find any error prejudicial to the plaintiff in any other ruling at the trial.

The further evidence treated as newly discovered, upon which the plaintiff founds her application for a new trial, so far as it relates to the merits, is similar to that given on her part on the trial, and is in that sense cumulative. It would not necessarily be contradictory of that of the specific facts testified to by the defendant’s witnesses, and. assuming that the latter are entitled to credit, it would add substantially nothing more in support of the action; and unless it can be seen that the newly discovered evidence has such importance as to permit the supposition that it may produce a result different from that of the trial previously had, a new trial on that ground ought not to be granted. Schultz v. Third Av. Railroad Co., 47 N. Y. Supr. Ct. R. 285; Jackson v. Town of Ft. Covington, 40 St. Rep. 67; 15 N. Y. Supp. 793. The plaintiff bases her motion partly upon the statement of a purpose to produce evidence by way of impeachment of the credibility of one of the defendant’s witnesses on the trial, and presents affidavits of persons to the effect that such witness is not entitled to credit. As a general rule, newly discovered evidence, sought for the purpose of discrediting a witness, is not a ground for granting a new trial. Carpenter v. Coe, 67 Barb. 411; Starin v. Kelly, 47 N. Y. Supr. Ct. R. 588. It appears that the action has been twice tried. The first trial was in May, 1893, and the second trial was in October following. The person whose credibility the plaintiff seeks to impeach was a witness on both trials, and no evidence was offered on either to impeach the veracity of such witness. If any one of three of the witnesses who testified on the part of the defendant upon the trial is taken as true, it is not seen how the plaintiff could recover on a new trial. There is no well-founded ground for granting it.

The motion for a new trial should be denied, and the order appealed from affirmed. All concur.  