
    Adelaide Thompson, as Administratrix, etc., of Henry Thompson, Deceased, Appellant, v. Charles Welde, Respondent.
    
      Newly-discovered evidence—failure to exercise diligence in procuring the proof on the first trial — delay in moving'.
    
    
      A motion for a new trial, made upon, the ground of newly-discovered evidence, should he granted only where it appears from the moving papers that the evidence could not, by the exercise, of reasonable diligence, have been discovered-before the trial, and where the motion is made promptly upon the discovery of . the new "evidence.
    Where a defendant testifies upon .a trial that" hé made certain payments on the plaintiff’s intestate’s claim by his checks whichhad been indorsed by the plaintiff’s intestate, and were in the possession of the defendant’s attorney, who was, present at the trial and was asked to produce the checks, but said that he did not have them, a motion for a new trial on the ground of newly-discovered evidence, based upon the fact that since the trial the defendant’s attorney had' made search for and found the checks, no explanation being given why they . could not have been produced on.the trial, and on the further ground that a witness not called upon the previous trial, although the defendant must have-known at -the .time of the trial what the witness could testify to, will swear that he delivered certain moneys to the plaintiff’s intestate by -the defendant’s direction, should be denied. •
    Appeal,by the plaintiff, Adelaide Thompson, as administratrix, etc., of- Heirry Thompson, deceased, from an order of the Supreme Court,, made at the New York Special Term and entered in the office, of the -clerk of the county of New. York oil the 9th day of. February,. 1898, granting the - defendant’s motion for a "new trial made upon the ground of newly-discovered evidence.
    
      Abram Kling, for the appellant.
    
      Thomas Allison, for the respondent.
   Rumsey, J.:

The action was brought to recover for money had and received by the defendant to the use of Henry Thompson, the plaintiff’s intestate. The sole defense was payment. " The case has been twice tried. Before -the first trial • the defendant, pursuant to. an order of" the court, served, a" bill of particulars of the times of the various payments to the intestate and the amount of each. Upon the first trial the evidence relied upon to show the payment consisted only of certain admissions of the intestate, sworn to by various witnesses. Upon that evidence a judgment was directed in favor of the defendant, which was reversed by this court, for the reason that the weight to be given to the admissions, under, all the circumstances, was a question of fact for the jury, and the case should have been submitted to them. Upon the second trial other evidence was produced by the defendant, and at the close of that trial the case was submitted to the jury, who found a verdict for the plaintiff for a larger portion of the sum demanded in the complaint. This verdict was rendered on the 15th day of. February, 1897. .The motion for a new trial was made on the 14th day of December, 1897, an order to show cause having been dated on the eleventh and served on that day. Upon this trial the defendant was permitted to be a witness in his own behalf. He testified, among other things, that he paid certain sums to Thompson by his checks, drawn at various times in 1890 and 1891, and that these checks were indorsed by Thompson, and were then in the possession of defendant’s attorney, who was present at the trial. Upon being asked to produce these checks, the attorney said that he did not have them, and thereupon the trial proceeded without further reference to them. There was no request on the part of the defendant that his- counsel be permitted to go and get them, nor was there any suggestion of any search for them, or any reason offered why they were not present. One of the pieces of newly-discovered evidence, upon' which this motion is made, is that the attorney, since the trial, has examined and made search for the checks and found them, and he now has them in his possession. Even now- no suggestion is made of an - excuse why these checks which the attorney- had in his possession before the trial, and which he apparently found without difficulty after the -trial, should not have been presented at the trial, where they-were so clearly material evidence.

The defendant also testified that the larger portion of the money which" Thompson gave- to him he put in his safe, and that he paid it to Thompson from time to time as Thompson sent for it. There was no suggestion upon the trial, by him, that he gave the money to anybody else to take to Thompson, except what he gave to one Quinn, who was a witness and testified to certain payments. It appears from the affidavits produced upon the motion that the defendant had in his employ as a bookkeeper Until September,. 1890, one Andrews whose affidavit is produced. .Andrews swears in his affidavit that between the 1st of July, 18.90, .and the 15th of September, 1890, the defendant handed to him the money in cash to give to Thompson, and that he personally, at the request of the 'defendant, paid Thompson that money, which amounted to $400. ¡He testifies further that on the evening of the 15t-li of February, '1897, he heard of the pendency of this action, and of the verdict rendered that day, and he called the attention of Velde’s son on that night to the fact of his making these payments of money.. It •is fair to be inferred, therefore, that the fact that Andrews could swear to these payments came to the knowledge of Velde on that ■night or the next day, and if the evidence of Andrews is true, it necessarily follows that these payments were made at Velde’s •express request and by his direction, and that he knew of the fact of their being made at the time when Andrews made them. If that be true, and it must be true if Andrews’ affidavit is accepted, Velde must have known of the fact of these payments having been made* ■ and he must have known of that fact at the time of the trial.. He does not deny that he knew it, but all he says on the subject is that •he discovered it since the trial, and it was out of his power by due diligence to have discovered, it before. But how that assertion can be reconciled with Andrews’ testimony that Velde gave him the money to make the . payments, and he made them Under Velde’s express direction, it is hard to see. Velde does not suggest that he had forgotten the fact or anything of that kind. The only explanation of it is that, as in the case of the checks, no effort was made to procure the testimony of this witness, whose evidence, if it were •true, was.-qiiite material. It is quite true that Velde says that he did not know the- witness’ address, but he also-, says that- he saw him, from time to time, and he carefully refrains, from stating that he made any effort to ascertain his whereabouts. Upon the affida-. vits presented by the defendant there is a great lack of diligence. ■Motions-for a new trial on the ground of newly-discovered evidence are granted- only where the evidence could not have: been discovered before the trial by the exercise of reasonable diligence, and that fact •is made to appear by the moving papers. To pormit any other rule would be manifestly unjust, because it would enable a litigant to experiment as to the amount of evidence necessary to win his case, in the hope that if the evidence produced was not sufficient, he might be allowed another, trial in which he could introduce the evidence held back and supply the gaps which he had permitted to exist. Because of this lack of diligence in preparation of ’trial this motion should have been denied.

It is said that the fault was not that of the defendant, but that of his attorney. If the attorney for the defendant neglected his duties, the remedy is not to be sought at the expense of the plaintiff, but the defendant must recover his damages for such neglect of the person who was guilty of it.

But, passing that point, there is another fatal objection. to the granting of this motion. The existence of the evidence of the checks, and the fact that it could be procured, was known to this defendant at the trial. He so testifies. The evidence of Andrews certainly came to his notice within a day or two after the trial. Yet, with the knowledge of the existence of what he calls newly-discovered evidence, he moved for a new trial upon the minutes, and upon that being denied he allowed this case to stand without taking any step whatever until December, 1891. It is a well-settled rule that one who desires to move for a new trial upon' the ground of newly-discovered evidence must do so as promptly as he can, and an unexplained and unnecessary delay is fatal to his motion. The delay here was clearly unnecessary, is entirely unexplained, and, for that reason also, the judge erred in granting this motion.

The order for a new trial should, therefore, be reversed, with costs, and the motion denied, with costs.

Yan Brunt, P. J., Barrett, O’Brien and Ingraham, JJ., concurred.

, Order reversed, with costs, and motion denied, with costs.  