
    JACOB PUUSTINEN v. JOHN SAARI AND ANOTHER.
    
    July 13, 1923.
    No. 23,517.
    New trial denied.
    Denial of new trial on ground of newly discovered evidence was proper. [Reporter]
    After the former appeal, defendants’ motion for a new trial was denied by Hughes, J. From the order denying their motion, defendants appealed.
    Affirmed.
    
      George B. Sjoselius and Lewis & Hunt, for appellants.
    
      Carl A. Onkka and Boyle & Montague, for respondent.
    
      
      Reported in 194 N. W. 627.
    
   PER CURIAM.

Alter defendants’ previous appeal was determined here, 154 Minn. 58, 191 N. W. 273, they moved in the court below for a new trial on the ground of newly discovered evidence. Their motion was denied and they appealed again.

The newly discovered evidence was set out in two affidavits. One was made by a man named Eappi and was to the effect that in January, 1921,,'he saw plaintiff and his nephew, Tikander,- at work cutting pine logs and asked plaintiff whether he was not “on the wrong man’s land,” and plaintiff flushed and replied: “I have leased this land and bought the timber from the Iron Range.” The -other affidavit was by a man named Koski and was to the effect that plaintiff asked him if he wanted to cut some timber for him. His reply to the inquiry was: “I don’t know. I -didn’t get my pay from the -cutting a year ago.” Whereupon plaintiff said: “I 'have -bought this timber and you don’t need to worry about getting your pay.” Plaintiff and :his nephew made affidavits denying the material portions of the alleged conversations.

The trial judge expressed the -opinion that it appeared from the affidavits that the testimony of Eappi and Koski would not be -likely to have much weight with a jury and there was no probability that a new trial would result differently, even if their testimony were given. We are -of the opinion that this was the right view to take and that there was a proper exercise of judicial discretion in the denial of the motion.

Order affirmed.  