
    Agnes Mevius, Respondent, v. Tiffin Products, Inc., Appellant.
    (Appeal No. 2.)
    Second Department,
    November 25, 1921.
    New trial — action for personal injuries — newly-discovered evidence — statement in insurance application by plaintiff after accident that she had suffered no injury — evidence material upon subject of extent of injuries — defendant not charged with negligence for failing to discover evidence — motion for new trial granted — affidavit on information and belief sufficient where court erroneously refuses reference to take evidence for purposes of motion.
    A motion for a new trial of an action for personal injuries on the ground of newly-discovered evidence is properly granted where it appears that the plaintifl, after the accident, stated in an application for insurance that she was in good physical condition, had suffered no injury and had not been confined to the house by illness, since the evidence is material upon the subject of the extent of the injuries and if credited by the jury would probably influence the amount of the verdict, and the defendant under the circumstances cannot be charged with negligence on account of its failure to discover the evidence.
    An affidavit which states the sources of information and the ground of belief is sufficient upon a motion for a new trial on the ground of newly-discovered evidence where the court erroneously denied a motion for a reference to take the evidence for the purpose of presentation .upon the motion.
    Appeal .by the defendant, Tiffin Products, Inc., from an order of the Supreme Court, made at the Kings Special Term and entered in the office of the clerk of the county of Queens on the 6th day of October, 1921, denying defendant’s motion for a new trial, on the ground of newly-discovered evidence, in an action to recover for personal injuries.
    
      Robert H. Charlton [William A. Earl with him on the brief], for the appellant. ' "/ ■
    
      George F. Hickey [Joseph A. Corbett with him on the brief], for the respondent.
   Per Curiam:

One of the substantial issues tried was the extent of the damages to which the plaintiff was entitled. The defendant moved for a new trial on the ground of newly-discovered evidence. It appeared that plaintiff, after the accident, made an application to an insurance company for insurance, in which she stated that she was in good physicial condition, and had sustained no injury, and had not been confined to the house by illness; and also had been examined by the Life Extension Institute. This evidence is material upon the subject of the extent of the injuries, and if credited by the jury would probably influence the amount of the verdict if they should find for the plaintiff. The defendant cannot be charged with negligence on account of its failure to discover this evidence under the circumstances. Therefore, all requirements for an order granting a new trial on the ground of newly-discovered evidence are met in this case. It is true that the evidence presented on the motion is hearsay. But it appears that the court denied (erroneously, we think) a motion for a reference to take this evidence for the purpose of presentation upon the motion. For that reason we consider the affidavit which states the sources of the information and the ground of belief sufficient.

The order denying the motion for a new trial on the ground of newly-discovered evidence should be reversed, and the motion granted, upon condition that defendant pay to plaintiff, within ten days after entry of the order, the costs of the action, including the costs of this appeal. If such payment is not made, the motion should be denied, with ten dollars costs.

Blackmab, P. J., Mills, Rich, Putnam and Kelly, JJ., concur.

The order denying the motion for a new trial on the ground of newly-discovered evidence is reversed, and the motion granted, upon condition that defendant pay to plaintiff, within ten days after entry of the order, the costs of the action, including the costs of this appeal. If such payment is not made, the motion is denied, with ten dollars costs.  