#### Francesco Rammauro, Respondent, *v.*Illinois Surety Company, Appellant.

Second Department,

June 5, 1914.

Trial—new trial upon ground of newly-discovered evidence denied.

Where, in an action on the bond of a foreign ticket agent, engaged in remitting money to foreign countries, the plaintiff testified that he had deposited money with him to be forwarded to him in Sicily, and that it was never repaid, and the defendant put in no proof, did not ask to go to the jury on the issue of the deposit, and joined with plaintiff’s counsel in asking that a verdict be directed, and a judgment for the plaintiff has been affirmed by the Appellate Division and the Court of Appeals, and the plaintiff has returned to Italy, the defendant’s motion for a new trial, upon the ground of newly-discovered evidence, to wit, that the absconding banker and his clerk, who never left the city, can give testimony to disprove the receipt of the money, was properly denied.

Appeal by the defendant, Illinois Surety Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 6th day of March, 1914, denying its motion for a new trial made upon the ground of newly-discovered evidence.

*Nelson L. Keach,*for the appellant.

*Achille J. Oishei,*for the respondent.

*27Putnam, J.:

This defendant moves for a new trial after the plaintiff, having given his testimony, returned to Italy, and the judgment has heen affirmed here and in the Court of Appeals. (152 App. Div. 934; 210 N. Y. 636.) This motion has been considered by the same learned judge who tried the cause, and his denial requires appellant to show strong grounds why we should grant it the extraordinary relief sought. The frauds of foreign ticket agents who engage also in remitting money to relatives and friends in Europe, moved the Legislature to pass chapter 185 of the Laws of 1907 to require a bond to be approved by the State Comptroller as a condition of engaging in such business. And it was this bond which the defendant furnished.

G-agliano, who was such a ticket banker, having received considerable sums of money in this way, absconded. This plaintiff testified that he had given $600 into his banking house, to be forwarded to him in Sicily, and that it was never repaid. The defendant put in no proof, did not ask to go to the jury on the issue of the deposit, and joined with plaintiff’s counsel in asking that a verdict be directed. Gagliano, the absconding banker, now turns up, and he and his clerk, La Ducca (who never left New York), are now proffered by defendant as its newly-found witnesses. They say they can give testimony to disprove receipt of the money.

But it appears that, although the banker had clerks in his employ, defendant made no effort to call them, and was either then satisfied of the fact of this deposit or else was negligent in its preparation for trial.

The denial of such an application has abundant support. An absconding banker may not yield to temptation on the instant. Accounts and receipts of his office might be left to conceal, rather than to record truly, his obligations. Hence evidence, based on the absence of records, or as to the serial number of his receipts, has not even that negative value which would always be weak as against the depositor’s direct proof of having handed in the money over the counter.

As a matter of discretion, where the costs already are out of proportion to the recovery, a new trial should not be had, where it would recall plaintiff from Italy to give his testimony *28again. Indeed, if the present judgment be vacated, a new recovery might not restore the rights of the plaintiff, as proceedings may give such creditors against this banker but a *pro rata*proportionate satisfaction out of the security which defendant furnished. Finally, upon the showing by the moving affidavits, a trial before another jury would almost surely lead to the same result.

The order, therefore, should be affirmed, with ten dollars costs and disbursements.

Jenks, P. J., Burr, Rich and Stapleton, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.