(163 App. Div. 26)

#### RAMMAURO v. ILLINOIS SURETY CO.

(Supreme Court, Appellate Division, Second Department.

June 5, 1914.)

New Trial (§ 108*)—Newly Discovered Evidence—Diligence—Sufficiency of Probable Effect.

After judgment against a surety company, surety on the bond of a foreign ticket agent and banker, for money deposited, the banker having absconded, had been affirmed and plaintiff had returned to Italy, the banker reappeared, and defendant moved for a new trial on the ground that he could disprove by the banker the fact of the deposit. The records of the banker’s office were accessible at the time of the trial, and were not introduced by defendant. *Held*that the court did not, under the circumstances, abuse its discretion in overruling the motion, both because there was no proper showing of diligence and because another trial was almost certain to result the same way.

[Ed. Note.—For other cases, see New Trial, Cent. Dig. §§ 226, 227; Dec. Dig. § 108.*]

Appeal from Special Term, Kings County.

Action by Francesco Rammauro against the Illinois Surety Company. From an order denying its motion for a new trial, made after affirmance of a judgment for plaintiff, defendant appeals.

Affirmed.

See, also, 152 App. Div. 934, 137 N. Y. Supp. 1139; 148 N. Y. Supp. 1140.

Argued before JENKS, P. J., and BURR, RICH, STAPLETON, and PUTNAM, JJ.

Nelson L. Keach, of New York City, for appellant.

A. J. Oishei, of New York City, for respondent.

*

For other cases see same topic & § number in Dec. *&*Am. Digs. 1907 to date, & Rep’r Indexes

PUTNAM, J.

This defendant moves for a new trial after the plaintiff, having given his testimony, returned to Italy, and the judgment has been affirmed here and in the Court of Appeals. 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 him the extraordinary relief sought. The frauds of foreign ticket agents, who engage also in remitting money to relatives and friends in Europe, moved the Regislature to pass chapter 185 of the Raws 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.

Gagliano, 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, Ra 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, *36defendant 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 o.n 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 again. 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 $10 costs and disbursements. All concur.