
    The Bath Gas Light Company, Respondent, v. John Claffy, Appellant, Impleaded with Others.
    
      New trial for newly-discovered evidence, based upon an opinion of a foreign court three-years in the hands of the moving party — laches.
    A party defendant in an action brought to enforce his liability as a surety upon a lease made between two foreign corporations,, is not entitled to a new trial upon the ground of newly-discovered evidence, where such evidence consists of a decision of a court of another State, a copy of which was in the possession of his counsel more than three years before the motion was .made for a new trial, especially where it appears that he is not merely a surety upon the lease, but was also a director and shareholder in the lessee corpora- • tion which sought, upon the plea of ultra vires, to avoid paying rent for property whose occupation it had enjoyed.
    Appeal by the defendant, John Claffy, from an order of the Supreme Court, made at the Dutchess Special Term and entered in the office of the clerk of the county of Kings on the 11th day of January, 1897, denying the defendant’s motion for a new trial upon the ground of newly-discovered evidence.
    
      L. Lafiin Kellogg, for the appellant.
    
      James MoKeen, for the respondent.
   Willard Bartlett, J.:

The purpose of this áction, so far as the appellant is concerned, was to enforce his liability as a surety for the faithful performance, on the part of the lessee, of the covenants contained in a lease between two Maine corporations. His defense was that the lease was void because made without legislative authority. In this defense he failed. The case went to the Court of Appeals and the facts are fully set out in the opinion of that court. (Bath Gas Light Co. v. Claffy, 151 N. Y. 24.) It was held that the doctrine of ult/ra vires was not available to defeat the action for past-due rent under the lease, in view of the fact that the lessee had occupied and enjoyed the leased property. On the part of the appellant it was argued in the Court of Appeals that the contract was a Maine contract, and that under the law of that State the lease was void, so that no action could be maintained upon it. In reference to this argument,, Andrews, Ch. JV, said : “ It is a sufficient answer .to this claim that the law of Maine on the subject does not .appear by the record, and that it is the' duty of this court, therefore, to determine the case according to the law of Hew York as established, or in the absence of controlling authority, as justice having regard to all interests may seem to the court to require.”

After the affirmance of the judgment against him in the Court of Appeals, the appellant now comes back to the Supreme Court' and asks for another trial on the ground of newly-discovered evidence. This evidence .consists of an opinion of the Supreme Court of the State of Maine in the case of The Brunswick Gas Light Co. v. The United Gas, Fuel & Light Co., which was announced on August 11, 1893. (85 Maine, 532.) The learned counsel for the appellant ■ insists that it is a controlling authority in favor of the defense relied upon by the defendant Claffy, and that if it had been a. part of the record in this case, there could have been no recovery by the plaintiff in the present action.

Whether this view of the effect of the Maine decision be correct or not, we do not deem it necessary to. determine. We are .of the opinion that the application was properly denied by the learned-judge at Special Term on the ground of laches, and that his refusal to grant the - motion should be sustained on that ground. In no sense can the Maine decision be regarded as' recently-discovered evidence. The appellant, in -his moving affidavit says, that th.e reason this decision was not offered on the trial of the. case was that it was not made until after the trial, “ and has been discovered since.” The affidavit of the attorney for the plaintiff, however, shows that the decision, was well known - to the attorney for the appellant shortly, after it was rendered. The dates leave no doubt on this point. This action was- tried on March 24, 1893. The, Maine, case was decided on August 11, 1893. The appeal to the General Term from tlie judgment in the present action was - argued in Brooklyn in September, 1893, and upon that appeal Mr. Kellogg submitted to the court a printed copy, of the opinion in the Maine case, which is now relied • upon as .newly-discovered evidence. It thus clearly appears that .its existence was known to him moré than three years before he made the present motion for a new trial. Such laches as this cannot be disregarded unless under the' most exceptional circumstances. Due diligence required that if the appellant desired the benefit of the Maine decision as evidence in the case, he should move promptly after-he learned that it had been handed down, aud not lie still, waiting to see whether he could not succeed at the General Term or in the Court of Appeals without it before making his motion. ■ We do not say that cases could not occur'in which as great a delay as this might be-excused. If, for example, the appellant here had no interest whatever in the lessee corporation which enjoyed the fruits of the lease and then sought to avoid paying for them, it might operate too- harshly to refuse him an opportunity to lay the Maine decision before the court on a new trial. But the appellant was not merely a surety. He was a director and one of the original shareholders of the lessee corporation, owning 450 shares of the-2,250 shares of stock first issued. As such shareholder, the lease upon which he is now seeking to avoid liability was-personally beneficial to him; and there is no consideration of justice or equity which requires .the application" in his case of any more .favorable rule than that laid down in the prevailing opinion in the Court of Appeals. As Is said in that opinion, “-to permit a lessee of a corporation to escape the payment of rent by pleading the incapacity of the corporation to make the lease, although he has had the undisturbed enjoyment of the property,. would be, we think, most inequitable and unjust.”

The order appealed from must be affirmed, with ten dollars costs and disbursements '

. All concurred.

Order affirmed, with ten dollars costs and disbursements.  