
    James McCreery Realty Corporation, Respondent, v. Equitable National Bank of New York, Appellant.
    First Department,
    January 10, 1908.
    KTew trial on newly-discovered evidence —• removal of judgment to Federal court no bar — appeal — discretionary power of lower court.
    The right to move for a hew trial is, in this State, conferred by statute, and the removal of the judgment to the Supreme Court of the United States by "writ of error and its affirmance by that court, constitutes no bar to a motion in the State court for a new trial on the grounds of newly-discovered evidence. " " '
    
      When the City Court of the city of JSTew York has, without abusing its discretion, granted a new trial on the grounds of newly-discovered evidence and the order has been affirmed by the Appellate Term, the Appellate Division will not overrule the order.
    Ingraham and Clarke, JJ., dissented, with opinion.
    Appeal by the defendant, the Equitable ¡¡National Bank of ¡Nhw York, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 28th day of May, 1907, affirming an order of the City Court of the city of ¡New York entered in the office of the clerk of said court on. the 28th day of ¡December, 1906.
    
      Louis Marshall, for the appellant.
    
      Henry F. Wolff, for the respondent.
   Scott, J.:

The appellant appeals from a determination' of the Appellate Term, affirming an order of the City Court of the city of ¡New York, which granted a new trial on account of newly-discovered evidence. The action was brought to recover an installment of rent, amounting to $750, claimed to he due for the .month of January, 1905, under a written lease whereby the demised premises were let for a term of five years from May 1,1902. The defendant entered into possession under the lease in May or June, 1902, and occupied the premises and paid rent therefor until February, 1904, when a receiver was appointed who continued to occupy the premises and pay rent therefor for some time after his appointment. It is unnecessary to recite in detail the history of the case, or the nature of the newly-discovered evidence which the plaintiff seeks an opportunity to present, since that ground has been exhaustively covered by the prevailing opinion of Mr. Justice Giegerich in the Appellate Term. (54 Misc. Rep. 508.) The same learned .justice has satisfactorily demonstrated that the right to move for a new trial, in this State is and has been at least since 1832 a right conferred by statute; and hence, that the removal of the judgment to the Supreme Court of the United States by writ of error, and its affirmance by that court, constituted no bar to the plaintiff’s present motion. (Fuller v. United States, 182 U. S. 562.)

The right of the City Court to entertain the motion being thus determined, the question whether or not the motion should be granted, became one for the exercise of the court’s • discretion. Assuming, but without deciding, that this court has power to review the discretionary order of the City Court .affirmed by the Appellate Term, I am very clearly of the opinion that we should not in the present case exercise that power. I am not unmindful of the apparent weakness of the' plaintiff’s case for a new trial, and-much doubt whether, as an original proposition, I should have been disposed to grant the motion. But that point is one upon which reasonable minds may well differ, and it certainly cannot be said that the City (Court abused its discretion in deciding to grant the application.. Under these circumstances I do not think that we should overrule both the City Court and the Appellate Term.

The order should be. affirmed, with ten dollars costs and disbursements.

Patterson, P. J., and Latighlin, J., concurred; Ingraham and . Clarke, JJ., dissented.

Ingraham, J. (dissenting):

This action was commenced on January 4, 1905, in the.City Court, to recover a'monthly installment of rent óf real property for the month of January, 1905, the complaint alleging that on or about the 1st of Hay, 1902, the plaintiff and the defendant' entered into a lease in writing whereby the plaintiff leased and demised to the defendant a portion of the premises 803 Broadway, in the city of Eew York, for a,term of five years, to commence on the 1st day of Hay, 1902, at the- yearly ■ rental of $9,000, payable in equal monthly installments on the'first day of each month in advance ; that the defendant entered into possession and enjoyment of the premises demised in said lease on the 1st day of Hay, 1902, and that the monthly installment of rent under said lease for the- month of January, 1905, is due and-unpaid. The answer denies that the defendant' executed. the lease or that it entered into possession of the premises, and alleges as a separate defense that the defendant was a national bank, organized under and existing by virtue of the laws of the United States, and was organized as such, and authorized by the Comptroller of the Currency to commence the business of banking on or about the 2d day of June, 1902 ; that the alleged lease set forth in the complaint was made, executed and entered into by the plaintiff with certain persons purporting to act on behalf of the defendant before the date of its organization, and before the defendant had any corporate existence, and before it had been authorized by the Comptroller of the Currency to commence the business of banking; that at the time when the said lease was executed and delivered the defendant had ho corporate existence, nor were there any officers or directors of the defendant corporation, nor any other person or persons then, or at .any time, having power or authority to make the lease set forth in the complaint; that the alleged lease set forth in the complaint was null and void and of no effect from the date thereof. Subsequently the complaint was amended so as to allege that the lease was executed and delivered on June 19, 1902. The case came on for trial before a justice of the City Court without a jury who, on February 24, 1905, filed his decision in which he found that the certificate of organization of the defendant was filed with the Comptroller of the Currency on the 19th of May, 1902; that its incorporators met and organized on the 27th day of May,' 1902, electing a president and one John Carraway cashier; that the certificate of the Comptroller of the Currency authorizing the defendant to commence the business of banking was issued on the 2d day of June, 1902; that on the 27th day of May, 1902, the plaintiff and the defendant entered into a lease in writing, dated the 1st day of May, 1902, whereby the plaintiff leased and demised to the defendant a portion of the premises Ho. .803 Broadway, in the city of Hew York; that the defendant entered into possession and enjoyment of the demised premises under said lease on or about the 10th day of May, 1902, and continued in the actual occupation thereof until the month of February, 1904; that the plaintiff executed said lease prior to the 27th day of May, 1902, and delivered the same to the defendant for execution; and that on the 27th day of May, 1902, the defendant by its president and cashier executed said lease and delivered the same to. the defendant corporation on said day, and the said lease was thereupon accepted and retained by the plaintiff; that the defendant paid the rent of the said premises for the month of May, 1902, and for each and every month thereafter to January, 1904, in advance, as required by the terms of said lease. As conclusions of law the court found that the defendant was not, at the time of the execution and delivery of the lease' set forth in the complaint, authorized by the Comptroller of the Currency to commence the business of banldng; and that the defendant corporation, not being authorized to commence business, had no authority to execute and deliver the lease set forth in the complaint on the 21th day of May, 1902, or to legally bind the defendant corporation' thereby; and that the act of the officers in executing and delivering said lease on said day was null and void; and judgment was directed for the defendant. Judgment was duly entered upon this decision, from which the plaintiff appealed to the Appellate Term, where the judgment was affirmed on the 1st of June, 1905. Application having been made to appeal to this court, which was refused, the plaintiff obtained a writ of error from the Supreme Court of the United States,, where the judgment' was subsequently affirmed on the 19th day of November, 1906. (203 U. S. 584.)

The sole issue on the trial was as to the date of the execution of the lease by the defendant. That issue was presented by the pleadings, and that issue was tried and determined upon these pleadings in favor of the defendant. After the case was submitted to the Supreme Court of the United States for its decision, and on the 23d day of October, 1906, the plaintiff obtained an order to show cause why there should not be a new trial upon the ground of newly-discovered evidence. This motion came on for argument after the decision of the Supreme Court of the United States had been announced, and resulted in the order appealed from which was entered on the 28th. day of December, 1906, granting the motion. This order was affirmed by the Appellate Term, which allowed an appeal to this court.

Before discussing the main question presented upon this appeal we should determine how far this court upon an appeal from the Appellate Term should review orders of the City Court which are of the class known as discretionary orders. Appeals from the City Court are regulated by the Code of Civil Procedure. Section 3189 provides that an appeal to the Supreme Court may also be taken from' an interlocutory judgment rendered, or an order made at chambers, or at a Special Term or a Trial Term of the City Court, or from an order made by a judge thereof out of court, in a case where an appeal may be taken to the Appellate Division of the Supreme Court from an interlocutory judgment rendered, oran order made, in like manner, as prescribed in sections 1347, 1348 and 1349 of the Code; that upon such an appeal the Supreme Court shall have full power to review any exercise of discretion by the court or judge below. Section 5 of article 6 of the Constitution provides that “ Appeals from inferior and local courts now heard in the Court of Common Pleas for the City and County of Hew York and the Superior Court of Buffalo, shall be heard in the Supreme Court in such manner and by such-justice or justices as the Appellate Divisions in the respective departments which include Hew York and Buffalo shall direct, unless otherwise provided by the Legislature.” Under this authority the Appellate Division has created a term of the Supreme Court to be held by three justices, and has directed that appeals from the City Court be held at said term. Section 3191 of the Code provides that an appeal to the Appellate Division of the Supreme Court in the first judicial department may be taken from the judgment or order entered upon the determination of an appeal taken as prescribed in sections 3188 and 3189 of the Code. An appeal from the City Court is to the Supreme Court, and upon such an appeal the Supreme Court shall have power to review any exercise of discretion by the court or judge below. Whether that appeal is heard by the 'Appellate Term of the Supreme Court, or the Appellate Division, full power is given to the Supreme Court to review a discretion exercised by the City Court, and that power is necessarily lodged in the Supreme Court, whether the appeal is heard at the term created by the Appellate Division for that purpose or by the Appellate Division itself, and on an appeal from the Appellate Term exercising this power to review the discretion of the City Court, this court necessarily has the same power to review the determination of the Appellate Term as if the appeal had been directly taken from .the City Court to this court. The right to review the discretion of the City Court being vested in the Supreme Court, it is the duty of that court to review the discretion of the City Court; and it seems to me, therefore, that the question of the proper exercise of judicial discretion in granting an order for a new trial is properly before us for review.

Bearing in mind, therefore, that the sole question presented upon these pleadings for determination in the City Court was.as to the date of the delivery and execution of this lease, the question is then presented as to whether the City Court should have granted a new trial upon the 'ground of newly-discovered evidence. The evidence which is. thus said to have been newly discovered is-that of the following named witnesses. One John W. Wooten, who was formerly one óf the defendant’s attorneys, was'called on behalf, of the defendant to testify as to the date, execution and delivery of the lease, and was examined and cross-examined, He testified that this lease was executed on May 27, 1902; that,he was present when it was executed and that it was delivered to a Mr. Easter, representing the plaintiff, on that day. There was presented on this applies^ tion an affidavit, verified by Wooten on tlie 22d day of October, 1906, over eighteen months'after the trial, that he handed these papers to 'Easter, plaintiff’s employee, after June "2, 1902, and- that the signatures of the president and the cashier of the defendant were affixed by both parties after June 2, 1902. This person is now an inmate of the State’s prison under a judgment convicting him of a crime. The second witness that it is alleged the plaintiff has since discovered was one Carraway who was the cashier of the defendant. The alleged lease was signed by Carraway as cashier and wars acknowledged by him on the 19th day of June, 1902. The plaintiff, therefore, liad full knowledge that Carraway, having been cashier of the defendant and having executed the lease on its behalf, could give material evidence as to the date of the execution of the lease and'its delivery. There is no allegation that the plaintiff or its. attorney made any effort to procure the testimony' of ■ Carraway upon the. trial, or to ascertain from him the date of the execution and delivery of this lease. In an affidavit upon which this motion was made it appears that in September,- 1906, one Gandy, whose connection with the case is not disclosed, called upon the plaintiff’s attorney and stated that lie had been informed by Carraway that the said lease was signed and delivered after June second and not before.' Just why this disclosure was made, or its object, is not disclosed; but the plaintiff’s attorney annexes to his affidavit a telegram, dated September 10, 1906, to Carraway in Mississippi, asking him when he intended coming to Eew York, and “ whether you can carry out Mr. Arthur Gandy’s suggestion , regarding bank case.” Just what that suggestion was is not disclosed. An answer to that telegram is also annexed to the affidavit which states : Can come to Eew York at any time desired. Mr. A. O. Gandy of Hotel Endicott represents me.” The plaintiff’s attorney .then telegraphed to Carraway that Gandy and Cockrell had informed the plaintiff’s attorney that Carraway did not sign the lease until after June second, and requested Carraway to telegraph Whether those are facts and whether you are willing to make deposition accordingly. Eot necessary for you-to come Eew York unless you desire to. Must, however, know to-day what the fact is in regard to date of your signature and your presence in the city.” In answer Carraway telegraphed: Gandy and Cockrell both know the facts in matter referred to. I am writing to make deposition setting forth the truth;” and these telegrams are the only communications from Carraway to plaintiff’s attorney as to what the facts were that he was willing to testify to. There is, therefore, here not only no affidavit of Carraway as to what was the truth, or as to what he would' testify to, but no direct statement from Carraway to the plaintiff’s attorney as to whether his testimony would be at all material upon a new trial. We have then an affidavit of Gandy, who also carefully refrained from any statement as to his relations to the case, to the plaintiff, or as to Avhat induced him to interfere. He states that at the time of the trial Carraway was absent from the State of Eew York and in the State of Mississippi, but that in June or July, 1905, he had a conversation with Carraway, in the course of which Carraway said that the lease was signed by the president of the defendant and by himself as cashier after June 2, 1902, and not before; that in the month of- July, 1906, he had a conversation with Carraway stating that he had received a communication from one Cunningham, an employee of the plaintiff, requesting an interview, but that he (Carraway) did not desire to see Cunningham, as he Avas afraid that he might be served with a subpoena to appear as a witness in some proceeding connected with this action, and that he did not desire to give testimony inasmuch as his testimony would be adverse to the defendant and, lienee, adverse to his interest asa stockholder of the defendant, repeating his statement that the lease was not signed until after June 2, 1902. Gandy then says that on or about the 1st of September, 1906, he communicated these facts to the plaintiff’s attorney and subsequently received a letter from Carraway in which Carraway stated that lie would give his deposition; that on September 17, 1906, he received a telegram from Carraway stating that he signed the lease after June second and would .make an affidavit to that effect; that since September 17,1906, Carraway had refused to furnish an affidavit for use upon the motion for the reason that he was unwilling to volunteer testimony in this case adverse .to his own interest as a stockholder of the defendant, and the interest of his friends similarly situated; and this is the only evidence we have as to what Carraway would testify to. There is not the slightest evidence that Carraway would be willing to testify on a new trial of the action to any fact that would be of' assistance to the plaintiff, any more than he would be willing to make an affidavit for use on the motion. There is also the affidavit of one O’Neale, who says that a few days before June 2, 1902, he entered the employment of the defendant as assistant cashier and for some time thereafter acted as teller; that after the defendant had commenced business, one Easter, who was in the employ of the plaintiff, called to the bank on several different occasions and inquired about this leasethat he spoke to Carraway about it, who told him the lease would be ready in a few days; and it was to ■obtain the testimony of these three witnesses that this motion was made.

■ Assuming that the court had power to grant a motion for a new trial on the ground of newly-discovered evidence, after the defeated party had exhausted his remedy by an appeal to the. highest court of the State or nation, such an application should only be granted in a clear case, and where it clearly appears that the testimony which the witnesses will give upon the new trial would have a material influence on the result; that the plaintiff’s attorney could not in the exercise -of ordinary diligence have obtained this testimony upon the trial, and that after the trial the plaintiff and its attorney exercised due diligence in their endeavors to procure the testimony of the witnesses upon whose evidence they rely for the granting of the application. It is quite clear that the practice should not be encouraged of such an application, made after the right to appeal has been exhausted and the judgment reviewed by the highest courts in the country, when the plain tiff’s attorney first makes an investigation as to what additional testimony he could have procured upon the trial. But little attention, I think, should be paid to this affidavit of Wooten who testified on the trial that the lease was delivered upon the twenty-seventh of May. He is an inmate of the State’s prison and comes forward with an affidavit that his testimony was false and that he is willing now to testify that the lease was delivered subsequent to June second. As to the testimony of Carraway and O’Heale, they were both officers of the defendant. Carraway had signed the lease. The plaintiff’s attorney had notice long before the trial that Carraway would give material testimony upon this question; and- by the exercise of ordinary diligence could have ascertained who were the other officers of the bank to whom he could apply for information. He brought his case on for trial without making any effort to obtain, this testimony, or even to ascertain what the officers or employees of the defendant who had to do with the making of the lease would testify to. After the trial, when defeated, he accepted the result, and instead of then endeavoring, to ascertain from the persons who, from the facts within his knowledge, would necessarily have knowledge as to the date of the delivery of the lease, took an appeal and prosecuted that appeal to the Supreme Court of the United States, and it was only as the result of some undisclosed arrangement between Gandy and the plaintiff’s attorney that the motion for a new trial is made, without a statement from Carraway to the court or to the plaintiff’s attorney that he could testify to any fact which would be of the slightest benefit to the plaintiff.

• The principles upon which new trials upon the ground of newly-discovered evidence are granted are well settled. They are stated in the cases of Biddescomb v. Cameron (58 App. Div. 42) and Simonowitz v. Schwartz (73 id. 489), and need not be here repeated. . I do not think the plaintiff has brought itself within the rule which requires a party to an action to act with diligence to procure the testimony necessary for the successful prosecution or defense of the action. The plaintiff knew before the trial that Carraway could give material evidence as to the date of the execution and delivery of this lease. He made no effort to procure his testimony, or to ascertain what he Would testify to; and .it is too late for him after the affirmance of the judgment by the Supreme Court of the United States to make investigation as to other evidence as a basis of an application for a new trial. In addition, attention should be paid to the very suspicious character of this “newly-discovered ” evidence. It is perhaps unnecessary to say more than that the good faith of these witnesses and the credibility of their testimony are subject to grave suspicion. People who had no recollection in 1905 of the delivery of a lease in 1902, in 1906 suddenly acquire recollection which, if testified, to, might help the plaintiff, and the witnesses who positively testified to a dáte in 1905 recollected in 1906 that their testimony was wrong, and-a wdtñess who refused, to make an affidavit, or wlio refused to state to. the plaintiff’s attorney what the fact was, is relied upon as being able to furnish testimony as to the fact. All of this is too suspicious and uncertain, it seems' to me, to justify a new trial. I have not reverted to the affidavit of Easter, which was read in reply to the defendant’s affidavit -in opposition to the motion, who was not one of the witnesses upon whom the plaintiff relied in making the motion; but his revival of recollection in consequence of a conversation with O’Meale is quite insufficient to bolster up a motion that was made without attempting to rely upon his • testimony. I do not think that under the circumstances, as they appeared before the City Court, this application should have been . granted, and I, therefore, think that the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Clarke, J., concurred.

Determination affirmed, with ten dollars costs and disbursements.  