#### George H. Neidlinger, Respondent, *v.*Onward Construction Company, Appellant.

Second Department,

January 24, 1908.

Practice — newly-discovered evidence — new trial denied.

The defendant after the affirmance by the Court of Appeals of a judgment . against it, rendered in an action to recover a balance unpaid on a building contract, moved for a new trial and leave to serve a supplemental answer on the ground of newly-discovered evidence, alleged to show that the architect . upon whose certificate the liability was predicated was insane and issued the certificate under improper influence. Moving papers examined and

*Held,*that a new trial should not he granted.

The court must he well satisfied that newly-discovered evidence will establish the claim made under it, where there has been a lengthy trial and a determination by the Appellate Division and the Court of Appeals, and the successful party will he deprived of the testimony of his most important witness by reason of insanity.

Appeal by the defendant, the Onward Construction Company, from an order of the Supreme Court, made at the Kings County Special Term • and entered in the office of- the cleric of the county of Kirigs on the 17th day of May,. 1907, denying, the defendant’s motion for a new trial and. for leave to serve a proposed supplemental answer.

*Abraham Gruber [Frnes't*Hall, *William M.*AT. *.Oleott,John 0.*Fisher, *Hiram H. Fisher*and *Albert H. Gleason*with him on the brief], for the appellant.

*Franje Harvey Field .[Walter Lester Glenney*with him on the brief], for the respondent.

Per Curiam :

The action was for an unpaid balance on a building contract, extras and damages caused by the owner’s delay, and resulted in a' judgment for the plaintiff after a trial by the court without a jury. Upon .appeal to this court, we affirmed the judgment upon the opinion rendered by the learned trial court. (107 App. Div. 398.) Upon appeal to the Court of Appeals the judgment was affirmed *27without opinion. (188 H. T. 572.) This appeal is from an order denying the defendant’s motion for a new trial upon the ground of newly-discovered evidence, and for leave to serve a supplemental answer. The affirmance in- the Court of Appeals was on April 2, 1907, and this motion was made upon an order to show cause granted April 9, 1907.

A reference to the opinion written upon the trial of this case will disclose that the defendant’s liability was predicated upon the architect’s certificate. Ho substantial claim was made upon the trial that the certificate was procured by fraud or misrepresentation, or that it was void for any such reason. The defendant now claims that it has been discovered the architect was insane at the time the certificate was made; that his. relations with the plaintifí’s agent were such that it should be inferred that it was obtained through his fraud, and that the certificate was not in fact the act of the architect but of Hutton, an incompetent assistant.

The certificate was made on May 6, 1903, the action begun May 11, 1903, and the trial had in June, 1904. Ho notion of the insanity appears to have been entertained by any of the agents or officers of the-defendant until Hovember, 1906. In the following month the architect went to France, and was soon thereafter placed in a public sanatarium, hopelessly insane. The affidavit of an alienist is incorporated among the moving papers, but we are not impressed that the case as made out contains sufficient reasonable evidence to establish that in May, 1903, the architect was in such a mental condition as to be unfit for the transaction of his business in connection with this contract. He was in daily intercourse with scores of people in connection with the business, and with the defendant’s agents and officers, and while some of his conduct was unusual, it does not appear that it was ever regarded as more than the evidence of personal eccentricities or that any one ever supposed that it indicated incapacity. Even if it should be admitted that he is in the last stages of paresis now and that the disease must have been present four or five years before this stage, and hence in May, 1903, the presumption that he was incapable then is not sufficiently strong for us to conclude that the. introduction of such evidence upon another trial would be likely to change the result.

The newly-discovered evidence relied upon to establish the fact *28that the certificate was false and fraudulent and, therefore, void, is by no means conclusive, and there is grave doubt whether, taking it altogether, there is sufficient to permit the court to submit the question to a new jury. The architect’s friendship with Vinton, the agent for the plaintiff’s assignor, arid the latter’s promise to obtain work for him in Detroit, are as capable of an innocent as a fraudulent construction. The architect’s alleged confession is evidently little, if anything, more than a statement that the legal effect given to it by the courts was larger than he had supposed it would-be • entitled to. The plaintiff will doubtless be unable to .procure the evidence of the architect at another trial, and the court should be well satisfied that the evidence is sufficient to establish what the defendant claims for it in this respect before granting the motion for a new trial where, in consequence of the time that has elapsed since the action was tried, the plaintiff will-be deprived of the evidence of this most important witness. *(Biddescomb*v. Cameron, 58 App. Div. 42.)

In our opinion the evidence of Hutton, the architect’s clerk, is hardly newly discovered ; it developed plainly upon the defendant’s cross-examination of the architect at the trial that he had relied to a greater or less extent upon the inspection and report of his assistant in preparing the certificate, but the defendant evidently chose ' to rely, as *it*had done when the certificate 'was made, upon the proposition that the plaintiff was not entitled under the contract to allowances because of the owner’s delay. It would, of course, assist the defendant to relieve it of the consequences of the choice of this plan of defense, but after a lengthy trial and the consideration by this court and the Court of Appeals of its voluminous. record and the final determination of the controversy, to grant such relief would be eminently unfair to the plaintiff, especially now that the architect’s evidence cannot be had. In this connection it may be observed that the contention of the appellant that, the certificate was made, not at all as a result of the exercise of judgment ■by the architect, but wholly upon the mere say-so of an ■ assistant whose experience and competency the appellant attacks, is somewhat astounding in view of the long-continued connection the architect had with the construction of "the building and in view of the fact that he was present at the building, or the office run in con*29nection therewith, daily during its construction until May 6, 1903, and under a weekly salary paid by the defendant.

We have considered other phases of the' matter discussed by the appellant, but are of opinion that it is concluded upon these questions by the law of the case as' already established. We reach the conclusion that the order should be affirmed, with costs.

Jenks, Hooker, Gaynor, High and Miller, JJ., concurred.

Order affirmed, with costs.