#### George E. Coy, Plaintiff, *v.*Richard M. Martin et al., Executors, etc., Defendants.

(Supreme Court, New York Special Term,

July, 1898.)

New trial for newly-discovered evidence,, granted after an affirmance on appeal— Laches.

While a new trial for newly-discovered evidence will only be granted for strong reasons, yet where, in an action for services, in which the defendant died before the trial, his executors, who defended, discover, after the plaintiff’s success at the trial and upon an appeal, that less than three weeks after the alleged contract was made between the deceased and the plaintiff, the latter testified in regard to it, in another action, that he was to be paid by the deceased at the rate of from $2,500 to $3,500 for one year, although upon the present trial he stated, and was supported by one witness in his statement, . that he was to be paid $5,000 for one year, the court will, in the absence of laches, grant a new trial to the executors,' as the discrepancy is too great to permit the judgment to stand, even though it has been affirmed on appeal.

Motion for a new trial on newly-discovered evidence.

Arthur C. Palmer, for plaintiff.

Warren, Boothby & Warren, for defendants.

Russell, J.

The defendants move for a new trial upon newly-discovered evidence after the verdict of a jury against them, and an affirmance of the judgment by the Appellate Division. In such a case the moving papers must present strong reasons, or the motion will be denied. After a fair trial, and an affirmance upon appeal, litigation should cease unless it is discovered that very important *212testimony may be had upon a new tidal, which was not with proper diligence discoverable by the defeated party before the trial took place.' A successful litigant has enough burden to sustain, both of vexation and expense, without requiring an additional imposition of care and annoyance and pecuniary loss by being compelled to retry an issue, solely because the other side has overlooked some matter of evidence which might have been useful to- him on the former trial.

This case, however, presents some unusual features. The action was to recover the balance unpaid to the plaintiff for services as general manager, from the 8th day of July, 1895, to the 8th day of July, 1896, for William Campbell, the deceased testator. A recovery was had of the difference between the amount paid and his salary at the rate of $5,000 per annum. The action was brought in the lifetime of the testator, but his'death occurred nearly a year prior to the trial, which took place-in February, 1898. The judg-ment, therefore, was against the defendants as executors, and they conducted the trial without the aid ,of information other than that which had been acquired by the attorneys for the testator, who were not aware at any time of the evidence now found, and which would have been important evidence on behalf of the defendants upon the trial of the action.

- The contract of service was testified to by Alexander Fischer, another employee of the deceased testator, who testified that the testator guaranteed the plaintiff $5,000 salary for one year to attend to the distribution of goods in the factory. On cross-examination, he stated that he could fix the- date of the conversation exactly, and did so fix it as occurring on the 8th day of-July, 1895,' the precise date stated in the complaint, and that during the conversation the witness was engaged in the employment of pasting samples in a book.

Without that testimony the action could not have been maintained, and, as the Appellate Division in its opinion stated, this evidence presented a fair question for the jury to decide whether under the circumstances of the case such a hiring at $5,000 for the year took place.

It has now been recently discovered by the attorneys for the. executors that on the 26th day of July, 1895, eighteen days after this alleged hiring at $5,000 for one year, -in an action brought between other parties, it became material for the present plaintiff Coy to, and that he did, testify as to his occupation.for the *213plaintiff and the salary he was receiving. It is undisputed upon this motion that, on the occasion of giving the testimony on this 26th day of July, 1895, the plaintiff did testify that his contract called for $2,500 for the year, and 2 per cent, commission on certain sales, and a half of 1 per cent, on certain others, which might possibly have amounted, if he had not been discharged before the expiration of the year, to $1,000', making somewhere from $2,500 to $3,500 for the year’s service instead of $5,000. It will be noted that the plaintiff, who has now recovered from the executors on the basis of a $5,000 salary, himself testified during the pendency of that service, and with the contract fresh in his mind, that he was to receive but $2,500 aside from certain commissions. That testimony is entirely inconsistent with his right of recovery in this action.

I have looked with care to ascertain the plaintiff’s explanation of this testimony. That explanation is considerably involved, but apparently attributes the statement to confusion and a recollection of a prior hiring at a rate of $2,500 and commissions. In support of the latter ground of explanation, the plaintiff produces a letter from the deceased testator dated March 30, 1895, stating the understanding of the testator as to the terms of the engagement of the plaintiff with him, which letter is underwritten, apparently by the plaintiff, as accepted April 2, 1895. But this letter, while it gave the plaintiff occasion to remember the $2,500 engagement, strongly corroborates the theory of the defendants. It states the testator’s understanding that the engagement with him was for a year beginning July 1, 1895, and ending June 30, 1896, at a salary of $2,500, with 2 per cent, commission on deliveries, except as to certain named parties as to which the commission would be one-half of 1 per cent., and that the testator should also pay the necessary traveling- expenses. We thus have the evidence by a written contract that from the 1st day of July, 1895, the plaintiff was to work for $2,500 by way of salary for one year, and we have the additional evidence by the statement under oath of the plaintiff less than four weeks after the beginning of his term of service at this rate, that he was working on that salary, and it would seem to be almost incredible, in view of these two items of evidence, that, intermediate this 1st day of July and the 26th day of July when the plaintiff’s testimony was given, a new contract was made, not reduced to writing, casually overheard by one witness, by which this salary was to be $5,000 a year.

*214• The plaintiff. knew of these two pieces; of evidence and the executors did not. Their natural import is so antagonistic to the present claim that it would seem proper he should present upon another trial satisfactory evidence to show why .his claim is valid, in spite of these matters of evidence.

The .question of laches in obtaining proper information for a trial is always Useful when the matters urged for granting a new trial are inconclusive, and may very well determine a balanced case. Laches cannot be urged, however, to defeat a plain matter of justice; nor do laches exist where the reasonable and ordinary inferences would sustain a conclusion that there was no very-strong reason why the defendant should have known of the facts now discovered. It is not ordinary practice to prepare a case for trial nearly a year before the actual trial, and the presence of the deceased testator when the plaintiff' was giving his testimony in. .the other action would not charge, the executors or the attorneys with knowledge as to what the plaintiff did testify to on that prior occasion. It will be remembered that this testimony was given at a time when the testator had no reason to suppose there was any difference between them as to the amount of the salary, and so Would not charge Ms mind with the details of the testimony given by the plaintiff, especially as he was then engrossed with another litigation, the material circumstances of which were sufficient to exclude other collateral matters from Ms memory. Even if he bad heard distinctly the testimony and remembered it, the attorneys may easily have never heard of the circumstance, or had occasion to, until preparation for the actual trial took place, wMch occurred long after the testator had died. It is very difficult for executors to contest a claim made against the deceased from want of a knowledge which died with the testator, and laches should not be readily imputed to them in their efforts as trustees to protect the trust estate.

I am cited to no authority upon the subject of the power of the court to grant a new trial for newly-discovered evidence after an appeal taken and an affirmance; though in a ease where the order of affirmance. has not been entered the general practice is to deny such motions. Fisher v. Corwin, 35 Hun, 253; Jackson v. Chace, 15 Johns. 354; Peck v. Hiler, 30 Barb. 656.

But the General Term, in Fisher v. Corwin, above, cited, evidently regards the rule adopted by the Code of Civil Procedure, . section 724, that a party must seek relief for mistake, inadvertence *215or surprise within one year, a more uniform and unbending rule than that which denies relief after judgment on a motion for a new trial. Rone of the cases cited to sustain the proposition that a motion should not be entertained after judgment or appeal, contain the element of knowledge by the successful party of the existence of the evidence and a want of the knowledge by the defeated party, and the cases are not those where trustees without knowledge of the facts defend the estate they have in charge. The arm of the court is not shortened by any technical measure to prevent a new trial for good cause shown in such a case as this. In any case where the knowledge of strong helping facts rests solely with the successful party, the period of relief on account of those facts should not he shortened except by the end of the litigation. Even the section of the Code cited gives a year after notice of omission or mistake in which to correct the error, and does not limit the right of motion to the pendency of the action before judgment or before the decision of an appeal, and the inherent power of the court, without the aid of section 724, Code of Civil Procedure, allows the correction of mistakes and omissions and another opportunity to a party who has suffered by reason of ignorance or inadvertence. Vanderbilt v. Schreyer, 81 N. Y. 646; Hatch v. Central Nat’l Bank, 78 id. 487; Underwood v. Sutcliffe, 21 Hun, 357.

I can conceive of no more important ground of corrective relief than that which asks the reopening of the trial which went against the moving party for their want of knowledge of the action of the opposite party of which, as a matter of course, that opposite party had full information.

An order granting a new trial may be entered on payment of the costs of the appeal, and of the previous trial within twenty days after the amount has been ascertained by taxation and notice served, and in case of nonpayment, the motion for a new trial is denied, with $10 costs.

Ordered accordinglv.