
    James Brennan, Respondent, v. Boston and Maine Railroad, Appellant.
   Defendant has appealed from a judgment of the Saratoga Trial Term of the Supreme Court in favor of plaintiff in the sum of $25,000, in an action brought pursuant to the provisions of the Federal Employers’ Liability Act and also from the denial of defendant’s motion to set aside the verdict on the ground that it is against the weight of the evidence. Defendant also appeals from an order denying its motion for a new trial on the ground of newly discovered evidence. From the proof in the record the jury was warranted in finding that defendant was negligent and plaintiff was free from contributory negligence. In fact, contributory negligence is not a defense to the action under the statute in question but only goes to the reduction of plaintiff’s recovery. On the medical proof which plaintiff has adduced we may not say that the verdict is excessive. As to defendant’s motion for a new trial on the ground of newly discovered evidence, it is apparent that the evidence which it now labels as newly discovered was in its possession at and prior to the trial. Plaintiff contends that the last day he worked was February 5, 1949. Defendant contends that he worked fifteen days or parts of fifteen days thereafter. It offered in evidence on the trial time slips which would indicate that plaintiff had worked on the days in question. It did not confront plaintiff with this proof but offered it as part of its own case. Plaintiff was not called upon nor did he deny the signature on the time slips. Defendant now wants an opportunity to examine plaintiff as to those slips and also to put in evidence pay checks to plaintiff covering the period in question. The evidence is not newly discovered. Judgment and orders under review are unanimously affirmed, with costs to respondent. Present — Foster, P. J., Heffernan, Brewster, Bergan and Coon, JJ.  