
    THE MAYOR, etc., OF THE CITY OF NEW YORK, Appellant, v. JOHN BRADY, et al., Respondents.
    
      Appeal from order allowing costs to defendants severally.—Injunction, vacation of—Action for new trial, on the ground of newly-discovered facts and evidence.
    
    The complaint in an action for a new trial on the ground of newly-discovered facts and evidence is of the same nature as the former bill of review in equity, and similar facts should be alleged.
    It should allege the facts newly-discovered, and their nature, in order that the court might exercise its judgment upon their relevancy and materiality with the same particularity as was necessary in the affidavit preliminary to filing a bill of review, or on a motion for a new trial. It should show with precision who were the new witnesses, and the facts to which each could testify. Held, that for the reason, that the complaint in this case fails to show distinctly what are the newly-discovered facts, what is the supposed newly-discovered evidence to establish the same, and who are the witnesses to testify to such facts, the judgment and order appealed from, should be affirmed.
    
      Also held, that the order of a judge allowing defendants their costs severally in an action, is conclusive when he was of the opinion that the several demurrers were interposed in good faith for the protection of their several interests.
    In" the appeal from an order vacating an order of injunction in the case; Held, that the preponderance of the evidence to support the allegation of fraud in the complaint was not with the plaintiff, and even if it were clear that some fraud of some kind had been perpetrated, there was no proof that the particular fraud alleged in the complaint had been committed, and therefore the order is affirmed.
    Before Sedgwick, Oh. J., Freedman and O’Gorman, JJ.
    
      Decided May 6, 1889.
    
      Appeal by plaintiff from interlocutory judgment, entered upon orders sustaining demurrers interposed by each of the defendants to the plaintiff’s complaint.
    Appeal from order allowing defendants appearing by different attorneys, their costs severally.
    Appeal from an order vacating the injunction theretofore granted in the action.
    
      Henry R. Beehman, counsel to the corporation, and David J. Dean and Arthur H. Hasten, of counsel, for appellant, argued:—
    I. The complaint clearly charges that it was the fraudulent act of Brady which was the immediate means of his procuring the contract on which these judgments were based. Under this point may be considered several questions which have been raised with regard not only to the form of the pleading, but as to the effect of the acts sought to be charged therein. 1st. The various fraudulent acts committed by Brady took place before the contract was let. 2d. The contract would not have been awarded to Brady except for these fraudulent misrepresentations made by his procurement. 3d. The fraudulent acts of Brady were committed with full knowledge of the facts, and with the intent of profiting by the result of his acts. 4th. The fraud practiced by Brady through Duffy was direct fraud upon the officers of the city.
    II. The complaint fully shows the reasons why the evidence now presented was not available at the time when the judgments were entered and that the absence of • such evidence was due to no fault or neglect on the part of the city.
    III. The city is entitled to relief by injunction as prayed for in the complaint, either restraining the prosecution of the pending suit, or, if that is not granted, restraining the defendant Brady from offering in evidence on the trial of the pending suit the judgments in the former action.
    IV. There is no force in the suggestion that the ' court is without power to grant the relief sought herein on account of the length of time that has elapsed since the judgments were rendered.
    V. The court below erred in allowing more than one bill of costs against the plaintiff.
    
      E. Laflin Kellogg, attorney, and John Brady and Bernard Brady, of counsel, for respondents, argued:—
    I. The complaint fails to state any cause of action against these defendants, for the reason that it appears upon the face of the complaint that the precise questions which it desires here to be litigated have been adjudicated upon by this court in former judgments rendered in the actions of Bernard Brady against the city and John Brady against the city and in the motions made for a new trial in those cases before this court, passed upon by the special term, and general term of this court, and court of appeals.
    II. The judgments and orders above referred to having made the questions of actual and constructive fraud “ res adjudícala,” in the absence of allegations of fraud in their concoction (and the judgments having been satisfied and paid), the plaintiff is not entitled to relief by injunction to prevent the judgments being given their legal effect by being offered in evidence.
    III. The prosecution' of the action by Bernard Brady against the Mayor cannot be restrained under any of the allegations of the complaint.
    IV. Another fatal defect in the complaint which leaves out" of consideration all the principal subjects heretofore discussed is that there is a complete absence in the complaint of any statement that any of the defendants knew that the statement alleged to have been made by Dufiy to Viele was false. The necessity of alleging “ scienter ” on the part of a party charged with fraud is too well settled.
    Y. The contract cannot now be set aside in any event, even in spite of the adjudication of its illegality, for the reason that the plaintiff having accepted the work under the contract and the street itself, and devoted it to public use, is not in a position to restore the defendant contractor to his original status.
    
      Arthur N. Smith, attorney and of counsel, for respondent, The Laflin & Rand Powder Company.
    
      Jar dine Lyng, attorney and of counsel, for respondent Henry J. Morris.
   By the Court.—Sedgwick, Ch. J.

The complaint seeks to set aside judgments at law, in several actions that have been tried, and to interpose the defence of fraud in those actions. The plaintiff’s right, as claimed for this relief, is placed upon those allegations of the complaint that relate to the plaintiff’s claim, that the fraud was discovered, since the judgments, from evidence, also since then discovered.

I do not examine whether the defence, if interposed and sufficiently proved, would result in a verdict for plaintiff, and do examine the complaint, to ascertain, whether it shows that such a defence would be sustained by the evidence that the complaint alleges has been newly discovered.

The present complaint is of the same nature as the former bill of review that might be brought* upon the discovery of new matter. To secure leave of the court, which it was necessary to obtain to file the bill, it was also necessary to present an affidavit that, among other things, should show the nature of the new matter, in order that the court might exercise' its judgment upon its relevancy and materiality. The new matter was to be such as, if known, would probably have, produced a different determination. Story’s Equity Pleadings, §§ 412, 413; Wiser v. Blachly, 2 Johns. Ch., 488; Livingston v. Hubbs, 3 Ib. 124; 2 Dan. C. P. 1578, note. This was the rule in the case of an application for a review in equity. But its principle applies to a case of a judgment at law which a complaint asks to review. Of this, it is said, that a new trial will not be granted unless there can be no doubt as to the result if the case goes to another jury. 2 T. & W. L. C. in Eq., p. 1383.

In motions for a new trial at law for newly discovered evidence, it was necessary to show with precision who were the new witnesses, and the facts'to which they could testify. It is generally necessary to present the affidavit of the new witness. This was to show the court that a different result would probably follow the introduction of new proof.

Equity refused to interfere, when there might be relief by motion at law. Simson v. Hart, 14 Johns. 77.

I am of opinion that a complaint, like the present, if sustainable as setting forth a cause of action, should allege the facts newly discovered with the same particularity as was necessary in the affidavit preliminary to filing a bill of review, or as is necessary on a motion for a new trial, and that especially it should allege the facts, and not merely the result of the judgment of the plaintiff upon the facts said to be newly discovered.

The_ case made by the complaint, in respect of matters now under review, is sufficiently described by the following references to it. 'After alleging that certain investigations were made it proceeds thus: “As the result of such investigation this plaintiff is now in possession of numerous facts which constitute a sufficient defence, which said facts are of such a nature that they could not with the exercise of due diligence, have been discovered in time for their production upon the trial, &c., &c. Such facts were derived in many instances, from the statements of laboring men, or from employees of the defendant, or residents of the vicinity, &c., &c. In other instances they were derived from the statements of engineers and others.” It does not here appear that the matters, called facts, were facts, or what was their weight and significance. It does not appear to the judgment of a court that the matter would tend to support a defence of fraud. The allegations disclose no more than the opinion of plaintiff.

The complaint, also as to Duffy alleges: “ Said Duffy was twice called as a witness and examined de bene esse on behalf of the defendant Bernard Brady in the suit before referred to, in which he is plaintiff, under a pretended claim that said Duffy was about to leave the State, the first of such examinations being held on the 6th day of March, 1886, and the second on the 28th day of January, 1887. Between the dates of such examinations, to wit, on the 29th day of July, 1886, and the 7th and 13th days of December, 1886, and the 8th day of January, 1887, said Duffy was examined before the Commissioners of Accounts, and from the testimony there given by him in connection with his cross-examination upon his second examination de bene esse, and certain other independent examinations made by said commissioners, the evidence was obtained of the fraudulent and corrupt manner in which the aforesaid report was procured and the award of. said contract thereby effected. Such evidence was not complete, however, nor available to this plaintiff, until some months after the preparation of said affidavits and motion papers.

In this, a general inference from many things, is called evidence. Whether the pleader is justified in calling it evidence is not made to appear. There is no statement of what the facts are and of the witnesses who can prove them, and whether the testimony of such witnesses can now be produced. The complaint does not allege what Duffy testified, and what he is now willing to testify to. From the generality of the statement it is possible that facts sufficient to apprize the plaintiff of the fraud, and which are the facts upon which the plaintiff substantially relies to prove the fraud, came to its knowledge in time for their use before Judge Van Yorst’s decision. If this were so, the plaintiff might have had the legal remedy to which it should resort before resorting to equity, 2 Paige, 321; Dodge v. Strong, 2 Johns. Ch. 228, and cases cited. The complaint in saying “ such evidence was not complete nor available to this plaintiff,” puts a construction upon the evidentiary force of the facts which might not be justified if the facts were alleged and the exact time when they were first known.

For the reason that the complaint does not show what is the supposed newly-discovered evidence, and who are the witnesses that can give it, the judgment and order appealed from should be affirmed.

In the appeal from the order allowing the defendants their costs severally, the finding of the judge on the facts before him is conclusive. He was of the opinion that the several demurrers were interposed in good faith for the protection of several interests.

Order affirmed with $10 costs.

Freedman and O’Gorman, JJ., concurred.

In the same case.

Appeal by plaintiff from an order vacating an order of injunction.

Same counsel.

By the Court.—Sedgwick, Ch. J.

On the motion below the facts of the case were fully examined. The preponderance of the evidence to support the allegation of fraud in the complaint was not with the plaintiff. Perhaps the plaintiff very thoroughly showed the worthlessness of Duffy as a witness. It was not shown that his testimony could be relied upon to prove the fraud. Even if it were clear that some fraud of some kind had been perpetrated, there was no proof that the particular fraud set up in the complaint had been committed. It is also manifest that upon a trial the method of the examination of Duffy would be objectionable in vital respects.

The complaint is also demurrable.

The order should be affirmed with $10 costs to abide the event of the action.

Freedman and O’Gorman, JJ., concurred.  