
    MORRIS RAPHAELSKY, Plaintiff and Respondent, v. JAMES LYNCH, Sheriff, &c., Defendant and Appellant.
    A motion for a new trial on the grounds of newly-discovered evidence, may be made after judgment.
    The practice in this regard, considered and reviewed.
    • Statement of the principles settled in regard to granting new trials on the ground of newly-discovered evidence.
    
      a. The testimony must have been discovered since the former trial. ' "
    5. It must be such as could not have been obtained with reasonable care and diligence before.
    c. It must be material to the issue •
    
      d. It must go to the merits of the case, and not to impeach the character of-former witnesses.
    
      
      e. It must not be merely cumulative to the evidence on former trial.
    
      f. The facts must be strong, and the party offering them free from laches or neglect.
    The rules of the supreme court of 1799, denying new trials after judgment, and their effect, and their evasion and non-enforcement,—considered.
    The act of 1882 (laws of 1832, ch. 12) authorized motions for new trials on the ground of newly-discovered evidence, after judgment, and practically repealed the rules of 1799. From 1832 to the enactment of the Code in 1848, the practice was based upon this statute. *
    After the enactment of the Code, the question arose as to whether the act of 1882 was not repealed by the provisions thereof.
    All the decisions reviewed, including Folger ». Fitzhugh, 41 A. T. 228, and as a conclusion therefrom,—Held, that the act of 1832 is now in full force and effect, and is not inconsistent with the provisions of the Code, and that motions for new trials, upon the ground of newly-discovered evidence, will be entertained and decided by the court after judgment in the action.
    Before Barbour, Ch. J., and Jones and McCunn, JJ.
    
      Decided December 31, 1871.
    Appeal from an order of the special term, denying a motion for a new trial on the ground of newly-discovered evidence, made after judgment had been entered in the action. The points on the appeal, and the facts that formed the basis of this decision, fully appear in the opinion of the court.
    
      Brown, Hall & Vanderpoel, for defendant and appellant.
    
      Paris G. Clark and John S. Woodward, for plaintiff and respondent.
   By the Court.—MoCunn, J.

This is a motion for a new trial, on the ground of newly-discovered evidence. The controversy arose about a quantity of tobacco which defendant, on January 7, 1864, levied on, as sheriff of the county. Plaintiff undertook to prove that, some few days before the levy by the sheriff, the property had been transferred to him through the assignment of warehouse receipts. The testimony, although very much shaken by a severe cross-examination, was believed at the time by the jury, and they found a verdict for nearly five thousand dollars for plaintiff. Affidavits are now presented to us, showing that newly-discovered evidence exists, and that that evidence will show this suit to be a conspiracy on the part of the plaintiff and others, and that their design was to use this court to enable them to carry out their fraud against the sheriff. I need not say, that if such a conspiracy exists, or has existed on the part of the plaintiff, as is shadowed forth in the affidavits, it is the duty of this court to intercept it at once.

■ The following principles are settled in regard to granting new trials on the ground of newly-discovered evidence. The testimony upon which the motion is based must have been discovered' since the former trial. It must be such as could not have been obtained with reasonable care before; it must be material to the issue ; it must go to the merits of the case, and not to impeach the character of former witnesses. It must not be cumulative,—the facts must be strong, and the party offering them free from laches. The affidavits presented with the case here show that the facts contained therein were discovered since the trial. They show a conspiracy to enable suit to be brought against the sheriff; and these facts were not discovered until a quarrel took place, after the trial, between the plaintiff and the party from whom he claimed title and the witness on the trial. It could not (the testimony) have been obtained until some of the conspirators disclosed the facts, because it was their secret,—known to them alone—and could not be reached by physical industry. It is material, because it (the new evidence) shows that the plaintiff never owned a dollar’s worth of the property sued for; and it does not'impeach any of the witnesses, because none of them swore to this conspiracy before. It (the evidence now offered and.set up in the affidavits) is not cumulative, for the reason that no proof of any kind was offered by defendant going to show this conspiracy: The defendant is free from laches, because he applied to the court the instant the conspiracy was discovered. In fact, the testimony now sought to be introduced is very material, and not cumulative. It relates to a point upon which no testimony was given on the trial: it relates to the vital point in the case, “ title in plaintiff,.” It is true that Raphaelsky says he bought the property on the fourth, but he does not say that the bill of sale and warehouse receipt were signed and indorsed on the fourth. It was the indorsement of the warehouse receipt and the signing of the bill of sale which gave him the title, and if these were not executed before the attachment by the sheriff, no matter whether dated back or not, his action fails. He says he bought the goods on the fourth. He then had reference, no doubt, to the date of the bill of sale and the indorsement of the warehouse receipt, which were both ante-dated, and not to the actual time of the transaction. They (the receipt and bill of sale) were dated on the fourth ; but the affidavits now presented clearly show that this was a false date, and that the bill of sale and the indorsement on the warehouse receipt were gotten up after the sheriff’s levy, and that they were ante-dated, so as to bring the date before the sheriff’s levy under the attachment. The question as t© the time when the bill of sale and indorsement of the warehouse receipts were actually signed never came up on the trial. It was supposed, at the time of trial, that they were executed on the fourth. It never entered the minds of any one that this was a conspiracy, and (about the date of these instruments) that the papers were dated back. It now appears, by the - wife of the person whose property the tobacco was, and from other reliable proof, that all the^papers were a fraud. We must reasonably conclude that the jury, had they had before them the facts contained in these affidavits, disclosing the newly-discovered evidence attached to the case in this cause, their verdict might have been affected by them, and they might have found for the defendant. These facts had not been disclosed at the time of the trial, but were discovered some time after; and as soon as they were discovered application was made at once. There is, therefore, no laches imputable in not giving them in evidence. If the sheriff’s affidavits be true, he is placed here under great difficulties. When an officer of the law is under real disadvantage, and is at a loss how to act, the court must endeavor to help him as far as possible away from the difficulties; at the same time, it must see that no wrong is done the other party. In regard to the law governing this case;—I would say: First, as to the obsolete rules of 1799, denying new trials after the entry of judgment, and without stay for that purpose: The court, in many instances, in construing the rules of 1799, laid them down so rigidly that in many cases suitors found unreasonable difficulties in their way,—difficulties and inconveniences worse than those which the rules were intended to correct. Indeed, these stern rules (1799) were so disregarded to that extent, and so lightly considered and put in force down to 1833, that in many cases the rule was forgotten, and motions were often made, and granted, for new trials after judgment, with out even a knowledge of the rule being in existence (Roosevelt v. Fulton, 7 Cow. 107.) The sound maxim of policy is, that a greater evil should be avoided for a less, and a less good should give way to a greater. The rules of 1799 were so harsh and oppressive, that the courts acting under them seldom or ever enforced them during a period of thirty-three years. They skillfully or intentionally avoided them; and after years of experience, finding that the rules worked badly, so, at the solicitation of the courts, the legislature, in 1832, passed an act under which a new practice was inaugurated, and this statute allowed the granting of new trials after judgment, and even after execution was issued and money collected (Laws of 1832, ch. 12). It must be borne in mind, that no former act had fixed the rules and ¡ practice. These rules of 1799 were simply adopted by the court without the aid of the legislature, and such rules were always relaxed where good faith was shown by the parties. From 1832 until the adoption of the Code, in 1848 and 1849, an express statute (Session Laws 1832, ch. 12), and the rules of the court passed in conformity therewith, authorized motions for new trials on newly-discovered evidence after judgment. Such motions were constantly made at special term, held every three months, and if judgment had been entered and collected, it was set aside and restitution ordered. Under the Code of 1848 and 1849, a new system was inaugurated. It was a mooted point whether new trials could be granted, the doubt being created by the provision of the Code of 1849, section 265, as to judgment becoming final after four days; but even then it was held, that if a formal stay was merely granted within the four days, a motion might be made any time after judgment. 2 Sandf. 681. Under the Code, however, of 1851 and 1852, the four-day provision contained in section 265 of the Code of 1848 and 1849, and the provisions for a stay, were dropped entirely; and as the Code now stands there is nothing prohibiting such motion; so that the Code is in harmony with the act of 1832 and with the old rules and practice established thereunder. I say in harmony with the. act of 1832, because section 389 of the Code of 1848, and section 469 of the present Code, provide that the then existing (present) rules and practice of the court, that were consistent with that act “shall continue in force, subject to the powers over the same of the respective courts as they now exist” ; and as this section of the Code is now in force, it must follow that ' the practice of allowing motions for new trials after judgment, and without a stay, established by the act of 1832 is in full force and effect and applies to our present practice, and that the rules of 1799 do not apply. On the contrary, the rules of 1799 were wholly abrogated by virtue of the act of 1832, so that they do not now exist at all. Such was the practice laid down by Mr. Justice Slossoít, of this court, in the case of Benedict v. Coffee, 3 Duer, 669. That learned judge says: “ The entry of judgment does not prejudice the motion for a new trial on the ground of the verdict being against evidence,” &c. “The terms of this rule (Rule 8 of the Superior Court), plainly imply that such a motion may be made, notwithstanding the entry of judgment. And we find nothing in the provisions of the Code inconsistent with it.” This rule was also established in Maloney v. Dows, 18 How. Pr. 27, and in Allego v. Duncan, 20 Id. 210. It has been stated in the learned opinion below (on this motion) that the decisions in this court since the Code, were uniform against granting motions for a new trial after judgment. My learned brother must be in error in this regard, because I find (as I have just cited) that Mr. Justice Slosson (3 Duer, 669) in a case immediately in point held that the entry of judgment does not prejudice a motion for a new trial. The case in 2 Bandf. 681, in fact, decides the question in the way I contend, but only in a more indirect form, because there a new trial was ordered, and that after judgment. The cases in 4 Bosw. 503, and 5 Id. 73, and 7 Id. 400, and 26 How. Pr. 199, cited in the learned opinion below against our views, were decisions made under the impression that the rules of 1799, in the absence of anything to the contrary in the Code, were in full force and effect, and the very learned judges in deciding those cases, unintentionally no doubt, ignored or leaped over the decisions of sixteen years, decisions made under the acts of 1832 and the rules framed thereunder, which expressly gave the right to make these motions for leave at any time without a stay, and without a motion for that purpose, and which act still stands in full force and effect. Hay more, as I have before stated, that act absolutely abrogated the rigid rules of 1799, so that it seems that the learned judges deciding the cases above mentioned, utterly ignored or had forgotten the laws of 1832. Again: my learned brother, in deciding this motion below, fell into another error in saying that only one case is to be found in the supreme court exhibiting a contrary doctrine to his views. With the very highest regard for that learned brother’s research and attainments, I beg to be permitted to call attention to three cases in that court: the case of Messerall v. Powell, 6 How. Pr. 294; Tucker v. White, 22 Id. ; Tucker r. White, 28 Id. In all of them are to be found learned opinions (opinions by the court) indicating and establishing a different doctrine. I find also in the common pleas, Maloney n. Dows, 18 How. Pr. 27, a very able opinion of Chief Justice Daly. That learned judge shows conclusively that the act of 1832 is now in full force and effect. “The Code,” Judge Daly says, has made no material change (from the laws of 1832) as to the cou,rse of procedure where the object is to obtain a new trial.” But the four cases cited from the supreme court in the learned opinion below, do not, in my opinion show that this question has been decided in that court adversely to our views ; because in three cases out'of the four the motions were actually heard and decided, and new trials granted on the merits, notwithstanding the dicta of some of the judges on this question of practice; and the other, 15 Johns. 353, was decided under the old rule of .1799, and before the laws of 1833 were passed. And in the case of Gurney v. Smithson, in supreme court, the reasoning of the learned judge in that court and his decision were based on false premises, having entirely overlooked the fact that the practice under the act of 1833 prevailed for sixteen years immediately preceding the enactment of the Code.

We now come to the most important case yet cited (Folger v. Fitzhugh, 41 N. Y. 338), a decision which we now must follow implicitly. Mr. Justice Grover wrote the opinion holding that a motion could be made for a new trial after judgment, and four others of those learned men (Masox, Murray, Daxiels, and Huxt) concurred, and Mr. Justice Woodruff held that the supreme court had inherent power and control over its own judgments ; and certainly this view of Mr. Justice Woodruff amounted to the same thing. It was in fact holding that the court could grant new trials after judgment. The- othe; two learned judges, James and Lott, dissented. Mr. Justice James writing a short opinion dissenting from the practice of granting new trials after judgment; Mr. Justice Lott saying nothing on this subject. So that we have six judges holding in that case that the courts below have the power to grant new trials after judgment, and that they have inherent control over their own judgments; and certainly the court can only have inherent control for the purpose of seeing manifest justice done, and correcting errors and relieving suitors from oppression, wrongs or mistakes, or misfortunes, where justice requires it, by granting relief in the way of new trials, or otherwise after judgment. I repeat that. the right to grant new trials after judgment came up in the Folger v. Fitzhugh case, was fully and ably discussed, and that six of the judges held beyond a peradventure that the court had a right to grant new trials after judgment; and that only one of the judges (James) dissented from that view, Lott, J., being silent on the question ; and the dissent of Justice James was placed, as I learn, on mere technical grounds of practice. The learning displayed and the law laid down in this case (Folger v. Fitzhugh) by the court of last resort is the humane, sound and correct rule. It brushes away all technicalities, it settles the question, and places the rights of injured suitors beyond the reach of technical and uncertain minds. The decision in that, case (Folger v. Fitzhugh) has made this sound rule definite, certain and notorious ; at the same time it avoids delay and saves large expense and time to the parties. All the decisions to the effect that a motion for a new trial cannot be made after judgment and without a stay are based upon the technicalities of the old practice of 1799, and are not in harmony with the spirit of modern jurisprudence. There is no reason in such a rule, and its enforcement would sometimes work great injustice, as the case at bar fully illustrates. The enforcement of such a rule would practically prevent the granting of new trials on the ground of newly-discovered evidence. How can a defendant move for a new trial when he is ignorant of the facts which justify it or render it necessary ? Newly-discovered evidence, to be available for such a motion, must of necessity have been discovered after trial, as in this case. Here the plaintiff based his right to recover on a bill of sale and on the indorsement or transfer of a warehouse receipt from Solomon, dated January 4, 1864, and he, plaintiff and his witnesses, swore on the trial that the said bill of sale and receipts were executed on the day they bore date, January 4, 1864, and upon the sole strength of such swearing the plaintiff recovered. It is now clearly shown by proof, to my mind reliable, that the witnesses perjured themselves, and that no sale took place until days after the sheriff had attached the tobacco; that the bill of sale and warehouse receipts were both ante-dated so as to make them read and take effect before the attachment and levy. How, in the name of justice, would it be right to deprive the sheriff, a public officer acting in the line of his duty, of an opportunity to show the truth of the statements contained in his affidavits % The order at special term should be reversed.

Babboub, Ch. J., and Jones, J., concurred.

Note.—This court at general term in May, 1873 (Ludington v. Miller, opinion of Judge Monell), decided again, that a new trial on the grounds of newly discovered evidence may be granted after judgment. The learned judge, in his opinion, cites and follows the decision of the court of appeals, in Tracy v. Altmyer, 46 N. Y. 598.  