
    William Evans, Resp’t, v. The United States Life Insurance Company, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 13, 1887.)
    
    1. New trial—Newly discovered evidence—When relief refused.
    In all cases where a new trial is sought on the ground of newly discovered evidence, the motion should be made with the utmost diligence. A delay of nearly nine years having occurred since the discovery of the evidence, the relief sought will be refused.
    
      % Appeal to court of appeals—Effect of stipulation for judgment ABSOLUTE.
    Where plaintiff had judgment which was reversed and a new trial given in the action by the general term upon appeal, and plaintiff appeals from order granting a new trial to court of appeals, giving a stipulation that if the judgment is affirmed a “judgment absolute shall be rendered against the appellant,” Held, that after an adverse decision by the court of appeals the appellant could not be relieved from his stipulation. The stipulation covers the whole case.
    In 1866, the defendant insured the life of Charles A. Starr, for life, in the sum of $10,000, and in 1869, upon surrender of that policy a new policy in the sum of $6,500 was issued to Samuel W. Leddell, of Mendham, N. J., by whom the former policy had been held as security for loans made to Starr. By this latter policy Starr was prohibited from traveling by sea or residing in the southern states, between July and November in any year without permission of the defendant. In November, 1869, the defendant issued such permit, running to July 1, 1870, under which Starr, without Leddell’s knowledge, went to Louisiana by sea, intending to remain there if his business prospered. In June, 1870, defendant was informed of Starr’s determination to remain at the place in Louisiana where he then was, and in October following it notified Leddell that the annual premium of $156.32 would be due on the 28th of that month, and on that day Leddell, by Theodore W. Phenix tendered that amount. The company then claimed further sum of $162.50 as extra premium, and upon being told by Mr. Phenix that he did not have such increased amount with him, it appointed the next day for the payment of the whole $318.82, agreeing to keep the policy good until then, to admit of such payment. The next day, the 29th, Leddell, by his son, William Leddell, tendered the $318.82, but the company refused it on the ground that the agreement of the day before with Phenix had been made without consideration; that the policy had lapsed because the full amount had not been paid on the day previous, but it offered to accept the money on receipt of a satisfactory certificate from their medical examiner in New Orleans. This was refused by Leddell, who informed the company that he should tender the double premium so long as Starr lived, and upon his death claim the amount of the policy; and accordingly in October, 1871, Leddell again tendered the $318.82, which was again refused. In March of the following year Starr died.
    Leddell assigned his claim to William Evans, who, in 1874, commenced an action on the policy, which was on consent referred to John H. Bergen. On these facts the referee directed judgment for plaintiff for the amount of the policy, less the premiums which defendant refused to accept; but on appeal this judgment was reversed by the general term and a new trial ordered, on the ground that the forfeiture would not be waived without a new contract for sufficient consideration and having no further evidence, and not knowing of the agreement between Starr and the' defendant, subsequently discovered, Evans appealed to the court of appeals on the usual stipulation, where judgment absolute was ordered against him.
    In 1878 it was accidently discovered that Starr went south (where he died), under an agreement by him made with the defendant, that he might remain there permanently upon the defendant being paid the usual premiums for southern risks.
    Evans being about to go abroad, assigned the claims to William W. Hebbard, and in February, 1878, immediately after discovery of the facts, the latter commenced an action in this court, alleging such new agreement, on the policy. On defendant’s motion an order was made staying all proceedings, because of the non-payment by Evans of a balance of costs due from him. And becoming satisfied that there was much doubt of it being possible to succeed in that action, in the form it was, it has been allowed to-. remain pending ever since, neither side moving.
    Hebbard moved to open the judgment in the Evans Case, and to be allowed to serve an amended complaint alleging this new agreement. The motion was granted. From such order defendant- appeal
    
      Jay, Candler & Brush, for app’lt; Henry C. Willcox, for resp’t.
   Barnard, P. J.

If this application is to be subjected to-the rules which govern motions for new trials upon the ground of newly-discovered evidence, it should be denied. Final judgment was entered some ten years before the application was made and nearly nine years after the newly-discovered evidence was known to the plaintiff’s-assignor.

Again the papers are too indefinite in the statement of. the newly-discovered evidence. Generally the allegation is that some of the officers and -employees of the defendant,” informed Edward Wilcox that the person whose life was insured went south farther than was permitted by the policy “upon the understanding and agreement with defendant that he might remove there permanently,” upon paying the usual extra premiums.” No name is given of the employee or officer. No time is stated. No conversation is given. Upon such an affidavit the defendant can take no issue upon the facts.

No excuse is given for the long delay and the rule is rigid requiring diligence to obtain new trials. Eight yeárs is too long a period after discovery of the evidence.

There is another objection to the new trial. Charles A. Starr had a policy on his life for $10,000. This was assigned to Samuel W. Leddell to secure a debt of $6,500, from Starr to Leddell. In October, 1869, this policy was surrendered and a new one taken to Leddell on Starr’s life for $6,500. This policy established a parallel beyond which Starr should not go in the summer. Starr went and died in the prohibited district. Leddell assigned his policy to Evans the present plaintiff. Evans sued upon it and got judgment.

This was reversed and a new trial given in the action by the general term upon appeal, and Evans thereafter appealed to the court of appeals and gave a stipulation that if the judgment was affirmed a “ judgment absolute shall be rendered against the appellant.” This stipulation was in accordance with law. The appeal could not be effectual without this stipulation. The court of appeals affirmed the judgment and gave a judgment absolute against the plaintiff upon the stipulation. The court of appeals have given effect to such a judgment in several cases.

In Godfrey v. Moser (66 N. Y., 250), after an adverse decision the court stated that it was the statute which produced the result and not the court, and that there was no legal mode of relief. The case was a hard one because the new trial was given because a part of the judgment only was erroneous. Under the stipulation the whole case went •adversely to the plaintiff appellant.

In Mackay v. Lewis (73 N. Y., 382) the court of appeals again asserted that after an adverse decision it could not relieve the appellant from his stipulation.

In Hiscock v. Harris (80 N. Y., 402), where a plaintiff got a judgment in an action where the defendant had set up a counter-claim, the court held that the judgment must be absolute against the appellants upon the whole matter and right of controversy in the action, and the court call attention to the impolitic use of the right of appeal from orders granting new trials, and cite many cases in support of the far reaching nature of the stipulation in case of failure in the court of appeals. In the present case judgment absolute was ordered for the défendant on the stipulation. Upon that judgment a remittitur was sent to this-court and the absolute judgment was made the judgment of this court.

Alter that judgment, which was made 29th February, 1876, Evans had nothing to convey to Hibbard, who now appears to be substituted upon a conveyance of the same-policy of insurance by Evans to him.

The stipulation covered the whole case.

The policy was destroyed by it.

Order reversed and motion denied, with costs.

. Pratt, J., concurs; Dykman, J., not sitting.  