
    Everett Wells, Appellant, v. Rex A. Ramsey, Respondent.
   Appeal from an order of the Sullivan County Court, dated March 20, 1939, granting a motion by the defendant for a new trial upon the ground of newly-discovered evidence. The action is to recover the balance due for services in drilling a well 150 feet deep at two dollars per foot and on which $150 had already been paid. The answer admits an agreement by plaintiff to drill a well to a depth not to exceed 150 feet. A jury trial was had, which resulted in a judgment for the plaintiff for the balance claimed to be due him. The defendant moved for a new trial upon the ground of newly-discovered evidence. This evidence consists of the fact that after the trial the defendant had the well measured and he found it to be 153 feet. Defendant alleges that on the trial the plaintiff testified that the well was drilled to a depth of 175 feet, and plaintiff’s affidavit shows that he did testify on the trial that when he finished drilling the well was 175 feet deep. No case was made, as required by rule 221 of the Rules of Civil Practice, and the presiding judge’s minutes do not appear in the record now before us. The opinion of the trial judge, however, quotes a part of the evidence by the plaintiff to the effect that the well was 175 feet deep when finished, that the bill should have been $350, but he agreed to take $300, and that $300 is all he charged the defendant for the entire job. No satisfactory reason is given as to why the defendant could not have measured the well at any time before trial. In the light of aE these facts we find no justification for another trial of this action. Order reversed, with ten doEars costs, and motion denied, with ten doEars costs. HiE, P. J., Crapser, Bliss and Heffeman, JJ., concur.  