
    Abijah Whitney, App’lt, v. Eva Saxe, Rep’t.
    
      (City Court of New York, General Term,
    
    
      Filed November 23, 1888.)
    
    1. New trial — Newly discovered evidence — When a sufficent ground for.
    A new trial because of newly discovered evidence will not be granted unless the new evidence has come to the knowledge of the applicant since the trial, and it was not owing to the want of due diligence that it was not sooner discovered, and unless it is not cumulative, and is of such a nature and so positive and convincing, that it would probably produce a different verdict, if a new trial were granted.
    2. Same—When not sufficient ground for new trial.
    If the evidence tends merely to contradict or impeach witnesses sworn on the trial, a new trial will not be granted.
    3. Same—What is not considered as.
    Evidence which is within the knowledge of a person employed as bookkeeper by the assessors of the applicant, must be deemed to be within the knowledge of the employers and is not a sufficient basis for an application for a new trial if it was accessible to the applicant.
    4. Surprise—When party cannot claim to have been surprised.
    A plaintiff cannot claim surprise where he has been fully informed of the nature of the defendan.’s defense by her answer.
    5. Same—Remedy in case of surprise upon trial.
    Where a party is surprised upon a trial by testimony given, his remedy is by motion to postpone. If the new trial is sustained a juror may be withdrawn in which case the cause will go off without prejudice to the rights of the parties.
    Appeal from an order made and entered herein May 15, 1888, by Chief Justice McAdam, denying motion of plaintiff’s attorney, for a new trial on the ground of newly discovered evidence.
    The trial herein was had before Justice Hyatt and a jury, on the 12th day of May, 1887, and resulted in a verdict for the defendant, the action being in replevin.
    An appeal was taken therein to the general term of this court, and the judgment rendered upon the trial, was affirmed, with costs.
    A motion was made before Chief Justice McAdam, for a new trial, on the ground of newly discovered evidence, and an order was made by the chief justice, on May 15, 1888, denying said motion, without costs.
    An appeal was taken from said order.
    
      J. Homer Hildreth, for pl’ff-app’lt; Elias G. Levy, for def’t-resp’t.
   McGown, J.

On the trial herein before Justice Hyatt, the plaintiff claimed ownership of a piano, and that tho defendant obtained possession thereof, under a contract of hiring, dated November 17, 1883, and that there had been a breach of contract, working a forfeiture thereof.

The defendant claimed in her answer, that the piano in question had been sold and delivered to her by plaintiff’s assignors, for the'sum of $325, the alleged purchase price of the same; that defendant had paid on account of said purchase price, the sum of $235.

But after the sale and delivery of said piano, she was induced to sign a certain paper (Pl’ffs. Exhibit, Wo. 1), the contents of which she did not know, and which was not read or explained to her; but that she was told that the same was merely a receipt that she had received the piano from plaintiff’s assignors some two months before she signed the paper.

Upon the trial thereof, one William H. Kennedy was called as a witness for the plaintiff, who testified that the paper referred to was signed in his presence by the defendant, in Wovember, 1883, and that he subscribed his name as a witness thereto.

It appeared from the paper referred to (Pl’ffs. Exhibit Wo. 1), introduced upon the trial, that the paper alleged to have been signed by the defendant, was a contract for the hiring of the piano only.

The defendant testified, that she had purchased the piano for a stipulated price, and that she had signed the paper (Pl’ffs. Exhibit, Wo. 1) upon the representation made by plaintiff’s agent, that the same was merely a receipt for the piano; that the piano had been delivered to her, and that she had had possession of the same about two months before she signed the paper; her testimony on this point was corroborated by that of her daughter, Hortense Saxe, and the whole evidence as to the time of the execution of plaintiff's Exhibit, Wo. 1, was passed upon by the jury.

The newly discovered evidence claimed by plaintiff is, in part, documentary, the remainder being certain evidence which it is claimed a witness, Frank V. Whitney would testify to.

The rules governing the application for new trials upon newly discovered evidence generally stated, are:

That the new evidence has come to the knowledge of the applicant since the trial.

. That it was not owing to the want of due diligence, that it was not sooner discovered.

That it is not cumulative; and

That it is of such a nature, and so positive and convincing, that it would probably produce a different verdict, if a new trial was granted. Schultz v. Third Av. R. R. Co., 47 N, Y. Sup’r Ct. R., 285; Brown v. Gladdis, 12 W. Dig., 212.

And that a motion for a new trial will not be granted, when the new evidence is cumulative, or tends merely_ to contradict or impeach witnesses, sworn on a previous trial. Starin v. Kelly, 47 Sup'r Ct. R., 288.

The alleged newly discovered documentary evidence, are transcripts from the books of plaintiff’s assignors, Abijah Whitney and W. E. Whitney, in their possession at the time of the original trial (fols. 28, 29 and 30, of Appeal book) and could have been produced upon such trial.

The proposed new witness, Frank V. Whitney, was in the employ of plaintiff’s said assignors as a bookkeeper, and had charge of the books of plaintiff’s assignors in November and December, 1883, and also at the date of the previous trial (folio 6 appeal book), and the facts within his knowledge as such bookkeeper may properly be deemed within the knowledge of his employers. Weston v. The N. Y. Elevated R. R. Co., 42 N. Y. Supr. Ct. R., 157.

The plaintiff was fully informed, by defendant’s answer, that evidence would be offered to show, or tending to show, that the paper (plaintiff’s Exhibit No. 1), was not signed until after the delivery of the piano.

The proposed new documentary evidence was all in the possession of plaintiff and his assignors at the date of the trial, was accessible to plaintiff, and could have been produced by him, and the witness Frank V. Whitney could also have been produced on the trial.

The proposed newly discovered evidence is merely cumulative, and the admission would have a tendency to contradict the testimony of the defendant and of her daughter, Hortense Saxe, and to impeach them.

It was the duty of the plaintiff to produce, upon the original trial, all his testimony.

He cannot claim a surprise as he was fully informed of the nature of defendant’s defense by her answer. May v. Strauss, 8 Abb. N. C., 274.

The court cannot recognize the right of litigants to try the issues raised by the pleadings in sections. Such a course would unnecessarily encourage litigation and entail upon the court a constant re-trial of cases.

Where a plaintiff has been surprised by the introduction of evidence, which he could not anticipate and which he could not meet by testimony at the time of the trial, not within his knowledge or which he could not possibly have knowledge of, and which he could not, at the time of the trial, have obtained, then in such case a new trial would be proper.

The alleged newly discovered documentary evidence was contained in the books of plaintiff’s assignors, and plaintiff was a member of their firm, and, if overlooked by him at the time of trial, is not newly discovered evidence. Burkitt v. Taylor (Ct. of App.), 13 Week. Dig., 75.

If, upon the trial, the plaintiff was surprised by the testimony given by the defendant and her daughter, his remedy was by motion then made to postpone, which, if it had been considered well founded, the trial justice would have granted, by directing the withdrawals of a juror, in which

case the cause would have gone off, without impairing the rights of either party. The People v. N. Y. Com. Pleas, 8 Cow., 130.

No such application was made.

See also Hernstein v. Fleming (1 Week. Dig., 401), and cases cited.

The order appealed from must be affirmed, with costs.  