
    Frank L. Froment, Eugene McK. Froment and Victor L. Froment, Respondents, v. August Mugler, Appellant.
    (Supreme Court, Appellate Term,
    June, 1906.)
    New trial — Grounds — Newly discovered evidence — Nature and suffi ciency of evidence discovered.
    A motion by plaintiff for a new trial upon the ground of newly discovered evidence should be denied, in a case where the plaintiff had failed to recover the price of certain steel bars because they were shown to have been smaller than ordered, where the plaintiff expressed no surprise at the trial respecting the proof of the size of the bars, and where the newly discovered evidence consists of the result of measurement of the bars since the trial, which does not show the bars to have been of the size ordered, 11/32 of an inch in thickness, but only that they were over 10/32 and were what was commercially known as 11/32, and an alleged admission by defendant, which he denies and which does not accord with his testimony given upon the trial and seems improbable.
    Appeal by the defendant from an order of the Municipal Court of the city of Yew York, seventh district, borough of Manhattan.
    Marcus Helfand, for appellant.
    Eobert J. Mahon, for respondents.
   Gildersleeve, J.

The defendant appeals from an order setting aside a judgment in plaintiffs’ favor upon the ground of newly-discovered evidence. This litigation arose out of the following facts: The defendant ordered a quantity of steel bars from the plaintiffs; among others there were to be 138 bars,, size four inches by eleven thirty-seconds inch. The defendant, claiming that the plaintiffs delivered bars of steel one thirty-second of an inch smaller than ordered, refused to pay for them. Plaintiffs brought suit for the whole bill and recovered for all but the 138 bars which the defendant proved were not of the size ordered and which he had not used but had offered to return to plaintiffs and then held subject to plaintiffs’ order. The goods were sold to defendant in May and the defendant testified that the plaintiffs frequently called upon him for the amount of the bill, but that he repeatedly refused payment for the 138 bars upon the ground that they were not as ordered. The plaintiffs did not deny that they made frequent demands for their pay but did deny that the defendant ever called their attention to any alleged discrepancy in the size of the bars and claimed that the first time their attention was called to it was at the trial. Plaintiffs made no claim at the trial, however, that the bars were of the size ordered and did not express any surprise at the defendant’s claim nor ask for an adjournment for the purpose of showing the exact size of the steel. A piece of steel, alleged to have been cut from the bars delivered, was produced in court and a witness testifiéd that the size was but four inches by ten thirty-seconds instead of eleven thirty-seconds inch in thickness and it was substantially conceded that defendant’s order called for eleven thirty-seconds-inch steel. Judgment was rendered for the plaintiffs for the amount of their claim less the price of the 138 bars of steel delivered not conforming to the defendant’s order. Subsequently the plaintiffs made a motion to set aside the judgment upon the ground of newly-discovered evidence which was granted. The newly-discovered evidence consisted of an affidavit made by a man named Smith who testified that,. on September 22, 1905, which was three days after the trial, he went to defendant’s shop, asked the bookkeeper for and obtained the sample of steel used on the trial and, upon measuring it, found that it measured “ over 10/32;” that he also measured some of the bars in the lot of 138 and they also measured, “over 10/32;” and he says that the sjze is what is sold as “ a commercial 11/32 all over the City.” One of the plaintiffs also makes an affidavit, verified the day after the trial, in which he says that, “ this morning ” he, called on the defendant, and that the defendant admitted he had used some of the disputed steel, and also admitted that he had failed to tell the plaintiff of his objection to the size of the steel. These allegations are positively denied by the bookkeeper and the defendant. This testimony as to newly-discovered evidence is not of a character to warrant the setting aside of the judgment. It could as well have been obtained before and introduced at the trial as later on by affidavit. As before stated plaintiff expressed no surprise at the evidence given at the trial and, so far as his own affidavit is concerned, it merely repeats what he had already testified to upon the trial except that he swears to an admission by the defendant -of the use of some of the steel in question. As to this statement, in view of the defendant’s testimony upon the- trial and his denial in his affidavit, it hardly seems probable that he would swear to never having used any portion of the steel on the nineteenth of September, and on the morning of the twentieth have confessed to the plaintiff that he had used a portion of it. The fact that the defendant incidentally stated that his contemplated use of the steel was for fire escapes and that the size required for that purpose was not less than eleven thirty-seconds inch when in fact the required size is twelve thirty-seconds is not important. It was immaterial to what use he intended to put the steel. The plaintiff made no claim at the trial that the size of steel delivered to defendant was commercially known as 11/32” and Smith does not swear that the pieces measured by him equaled in size that ordered by defendant.

The order is reversed, with costs, and the judgment reinstated.

Leventritt and McGall, JJ., concur in result.

Order reversed, with costs, and judgment reinstated.  