
    THE WILCOX SILVER PLATE COMPANY, Respondent v. JAMES F. BARCLAY, Appellant
    
      Motion for a new trial on the ground of newly discovered evidence — the rule denying such a motion, when the evidence is cumulative, criticised and stated not to rest upon any just or solid foundation.
    
    Appeal from an order denying a motion for a new trial made on the ground of newly discovered evidence and entered in New York county.
    The action was brought for the price of goods alleged to have been delivered to the defendant by the plaintiff in the fall of' 1882, for which it is averred he agreed to .pay the prices mentioned in the complaint; and a balance was claimed amounting to the sum of $265. He denied the purchase or receipt of the goods himself, and evidence was given on behalf of the plaintiff to prove that the goods were delivered under his authority and upon his promise to pay the prices for the same. This delivery was made at store No. 31 West Fourteenth street.
    The defendant, Jby way of defense, gave evidence tending to show the fact to be that the business there was carried on by and in the name'of his father, and that he himself was in no manner connected with it. And to substantiate his statement a ledger was produced, which he testified he found in the attic of the house four days before the trial, in which the account of these goods was entered in the name of his father as the purchaser. The jury rendered a verdict in favor of the defendant.
    The affidavits of the plaintiff’s agent and salesman and of its manager, and also of its attorney, are that an examination of the book was made, and the names of persons from whom goods had been obtained were contained in it, with statements of tbeir accounts; and that these persons will testify that the goods were, in fact, sold to the defendant in this action, and not to his father. The affidavits of these persons have been added, in which they assert their ability to give this testimony, and several of them to give further testimony tending to show that the defendant was the person who carried on the business at this store during the time in controversy, when the plaintiff sold and its own goods were there delivered. The defendant .controverted the statements of these persons, and produced accounts and receipts tending to sustain the affidavit made by him. And also produced other, affidavits indicating that the .business was not carried on by himself or in his name, but was carried on by and in the name of his father.
    The court at General Term said: “ What the effect of the testimony of these witnesses might be upon another trial of the action cannot certainly now be determined. It presents a controverted case in which the jury might adopt either view. There is a probability certainly that they would consider the case of the plaintiff made out rather than that the defense of the defendant was proved. And in this state of the evidence it will be a matter of propriety and justice to submit the case to the hearing and decision of another jury.
    “ There was no means within the control of the plaintiff or its officers or agents, by which they could discover the existence of these other accounts, before they were afforded an opportunity of inspecting the ledger upon the trial. And, by observing them there, that led to the inspection, resulting in the discovery of these persons who state that their business was with the defendant and not with his father; and the application was made with diligence after their affidavits were obtained. There was no delay or negligence on the part of the plaintiff which would justify the denial of the motion on that ground. That the evidence is material to the issue, seems to be free from all ground of doubt, and it is of the description not to be cumulative. For no such ' evidence was given upon the trial of the action; and to render newly discovered evidence cumulative, it must be of the same quality or description given upon the trial of the action. . (Hat. JBcmk, etc., v. Heaton,- fi N. Y. Sup. Ct. [T. & C.], 31; Parshall v. KlinoTc, 43 Barb., 203, 212.)
    
      “ The rule or principle requiring the denial of a motion for a new trial, on the ground of the evidence, newly discovered, being cumulative, does not rest upon any just or solid foundation. It is simply the dictate of authority which has been followed without much consideration of its foundation. It is not one to be extended to cases not falling directly within its language. For there is the same propriety and necessity for giving a party a new trial, who can vindicate himself, or sustain his cause of action by cumulative evidence as there is for any other reason. And there is certainly no justice in subjecting a person to what is really an unfounded dla.im; or for preventing him from maintaining an equally well founded defense, because the evidence discovered by him by which that can be done, may be of the same quality or description as that given upon the trial in which he has been defeated. The evidence stated to have been newly discovered in this case is not cumulative under the rule as it has been asserted and repeated, but a case was made entitling’ the plaintiff to an order setting aside the verdict and directing a new trial. The order should be reversed, with the costs to the plaintiff on this appeal, and an order entered setting aside the verdict and directing a new trial, on the payment by the plaintiff within twenty days after their judgment, of the costs of the trial already had. But if such costs shall not be paid or tendered within that time, then the motion will be denied with ten dollars costs, and the order affirmed, wdth costs.”
    
      8. F. Fneelcmd, for the appellant.
    
      Fred. M. Littlefield, for the respondent.
   Opinion by

Daniels, J.,

Van Brunt, P. J., concurred. Brady, J., concurred in the result.

Order reversed and verdict set aside and new trial directed on payment by plaintiff within twenty days of the costs of trial already had ; and in default of such payment, motion denied with ten dollars costs, and order affirmed, with costs.  