
    Frederick W. Helmke, Resp't, v. Henry I. Stetler, App'lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May 8, 1893.)
    
    New trial—Newly discovered evidence.
    In an action for injuries to plaintiff caused by the kick of a horse furnished by defendant, his employer, there was evidence that defendant knew that the horse had kicked another person. A motion for a new trial on the ground of newly discovered evidence was made on the affidavit of said person that the kick was a slight one, and was due to his carelessness in going between the horse in question and another one while they were fighting, and affidavits of other persons that they had not known said horse to kick any one. Held, insufficient to justify a new trial.
    Appeal from, order denying motion for a new trial on newly discovered evidence.
    
      Abram A. Demarest, for app’lt; C. P. Hoffman, for resp't.
   Dykman, J.

This is an from an order a motion for a new trial upon newly discovered evidence.

The action is for the recovery of damages resulting from the kick of a horse belonging to the defendant.

The plaintiff was in the employ of the defendant when he received the injury, and the action is based upon the vicious propensity of the animal.

The question of fact upon which the case would turn was well understood by the defendant and his counsel, for there were two trials of the action.

The affidavits upon which the motion is based are quite unsatisfactory, and it is by no means clear that the new testimony would produce a different result.

It was proved upon the trial that the defendant had knowledge that the horse had kicked Robert Byer; and now he makes an affidavit that the horse did kick him, but that it wás a slight kick, and he attributes it to his carelessness.

His testimony, therefore, would prove the fact that the horse did kick him while it was fighting with another horse, and thus show that the vicious disposition of the animal induced it to kick men and fight with other horses.

The other affidavits are in many respects suspicious and inconsistent with the established facts. Our conclusion is that the affidavits are insufficient to justify a new trial, and that the order should be affirmed, with ten dollars costs and disbursements.

Barnard, P. J., and Pratt, J., concur.  