
    Christ v. Chetwood.
    New trial—newly discovered evidence.
    Appeal from order denying motion for a new trial on the ground of newly discovered evidence.
    
      Herman G. Loew, for plaintiff (respondent).
    
      John G. Ritter, for defendant (appellant).
   Newburger, J.

This action was brought against the defendant for the receipt, conversion and wrongful detention and withholding from plaintiff of moneys received and collected by defendant as an attorney, belonging to plaintiff, which he, defendant, appropriated to his own use.

In 1877 the plaintiff, who was then about fourteen years of age, with his sister, were owners of a bond and mortgage on real estate in the city of New York. In that year defendant was retained as attorney to institute foreclosure proceedings, and he brought such an action, and in that action the property was sold and bought in by the sister of the plaintiff. In 1879 the property was again sold, and the purchase price was received by the defendant as attorney. The answer of the defendant admits the receipt of the money, but sets up a number of defenses, including Statute of Limitations, settlement with the plaintiff’s sister, and a counterclaim for services rendered.

This case was tried in April, 1892, and resulted in a verdict for the plaintiff and against the defendant for the sum of $900. An appeal was then taken to the General Term of this court, which affirmed the judgment entered upon the verdict. The defendant then appealed to the General Term of the Court of Common Pleas, which affirmed the judgment April 5, 1893.

Subsequently, and in May, 1893, defendant moved for a new trial on newly discovered evidence. This motion was heard and denied, and from the order entered thereon this appeal is taken. This motion comes too late. It would be a great injustice to the plaintiff. It is not the practice to grant new trials upon newly discovered evidence after the judgment has been affirmed by two appellate courts. Independent, however, of the practice there is no merit in the application.

The motion was properly denied, and the order appealed from must be affirmed, with costs.

McCarthy, J., concurs.

Order affirmed, with costs.  