
    Abraham Kantrowitz, Respondent, v. Morris R. Silverman, Appellant.
    (Supreme Court, Appellate Term,
    May, 1906.)
    New trial — Grounds — Newly discovered evidence — Nature and sufficiency of newly discovered evidence — Evidence in reduction of damages.
    Where the plaintiff recovered judgment, in an action for breach of a contract of employment for a year, for the amount of his agreed wages less a certain sum earned by him after his discharge, and the defendant moves for a new trial on the ground of newly discovered evidence of the fact of plaintiff’s having also earned money at piece work during the contract period, which fact he concealed at the trial, the motion should be granted, although plaintiff claims he could have done the piece work and earned the wages therefor without interfering with the performance of his contract with defendant, as that question should have been submitted to and passed on by the jury.
    Appeal by the defendant from an order filed in the Municipal Court of the city of Hew York, thirteenth district, borough of Manhattan, denying defendant’s motion to vacate and set aside the judgment entered in this action.
    Eeltenstein & Eosenstein, for appellant.
    A. I. Gordon, for respondent.
   Davis, J.

The plaintiff sued the defendant to recover $500 damages for breach of a contract of employment entered into on the 29th of January, 1905, and to continue for one year. It appears from the evidence that plaintiff is a tailor and works with a needle. He testifies that he entered defendant’s employ under the contract referred to on January 29, 1905, as foreman and that he worked until May 19, 1905, when he was discharged without just cause. He further testifies that, after his discharge, he sought work elsewhere and earned about $150. The case was tried before a jury Hovember 22, 1905, and there was a verdict for the plaintiff for $225, and thereafter judgment was rendered in his favor against the defendant for $249.50. This judgment was subsequently affirmed on appeal on the 27th of February, 1906. In the meantime and on the 29th of December, 1905, a motion was made before the justice who tried the case for a new trial and for an order vacating said judgment on the ground of newly-discovered evidence. The motion was denied by an order filed on the 23d of January, 1906. From the order denying this motion the defendant now appeals to this court. From the moving papers on the motion it appears that the plaintiff, subsequently to the commencement of this action, brought another action in the Municipal Court against one Stromberg; that he served a verified complaint therein in which he claimed that Stromberg owed herein $325 for services actually rendered and for loss of profits caused by Stromberg’s breach of contract with the plaintiff. It also appears that Stromberg interposed an answer in which he alleges that the plaintiff was employed by him with one Yetta ¡Rosenthal; that they performed services for him as piece workers for which they were paid $43.05. The defendant herein claims that he did not know of the employment of the plaintiff with Stromberg at the time of this trial; that he discovered it after the trial and that he could not discover it before by the exercise of any diligence. The plaintiff admits, in his papers filed on this motion, that he worked for Stromberg after he was discharged by the defendant in this action. But at the trial he concealed the fact of his contract with Stromberg. He now claims that he was not bound to refer to this contract because whatever he may have received under it could not be allowed in reduction of his claim against the defendant. He claims that his relation to Stromberg as established by that contract was' not inconsistent with his performance of service under his contract with defendant, and that he could properly carry out his engagements with Stromberg without interfering with that portion of his time and energy which belonged to defendant. These questions, I think, should all be left to the decision of the trial justice and should not be decided upon on this appeal. The evidence is important to the defendant, It is newly discovered and submission to a jury appears to me to be essential to a full and fair trial of the issues in this action. For these reasons I think the order appealed from should be reversed, with costs, and motion for new trial granted.

Gildebsleeve and Clihch, JJ., concur.

Order reversed, with costs, and motion granted.  