#### John George Benta, Respondent, *v.*George Harris, Appellant.

(City Court of New York, General Term,

May, 1899.)

New trial — Newly-discovered evidence;

Where the only issue in an action brought by an employee against an employer is whether the former was to receive 1 or 2 per cent, commissions on certain sales made by him, the employer’s motion for a new trial, on the ground of newly-discovered evidence, will be granted where it appears that he was taken by surprise on the trial, that according to the affidavits of his wife and of his physician he was confined to his bed at the time when the employee, as the latter testified, made the contract of employment with him at his store, and-where the only witness produced by the employee, besides himself, •now makes affidavit that a written memorandum of the contract, which he testified that he once had copied and which he had identified upon the trial, was not the one which he copied.

Appeal from judgment entered on a verdict rendered by a jury from an order denying a motion for a new trial made on judge’s minutes and from an order denying a motion for a new trial on newly-discovered evidence.

Herman 'Fox, for appellant..

Leon Lewin, for respondent.

Schuchman, J.

The complaint alleges that on or about December 1, 1893, the plaintiff was employed by the defendant as a salesman at a salary of $20 per week, and 2 per cent, commission on all goods and merchandise sold by the plaintiff for the de; fendant, and that between December 1, 1893, and ¡November, 1894, the plaintiff sold merchandise for the defendant amounting to the sum of $33,675.79. The answer admits the employment of plaintiff at" a salary of $20 weekly, and 1 per cent, commission on the sales, but denies that 2 per cent, commission on the sales- were agreed to be paid by defendant to plaintiff. The answer further admits the amount of the sales to have been said sum of $33,675.79, and it avers that the defendant paid to plaintiff said salary of $20 weekly and 1 per cent, commission" during the year. Thus it appears that the sole issue involved in this action was the *649fact whether the defendant had agreed to pay to the plaintiff 1 or 2 per cent, commission on the amount of the sales.

The evidence adduced at the trial shows that the plaintiff was employed by the defendant as salesman, by a written contract dated December 1, 1892, for the term of one year from date of contract, at the sum of $1,000 per annum, to be paid in weekly payments, and also a@ an additional salary the sum of 1 per cent, on all goods sold in the business of the said George Harris (the defendant herein), etc. This contract expiring on or about December 1, 1893, the new contract made as on or about December 1, 1893, for the ensuing year, is alleged in the complaint herein.

At the trial, however, the plaintiff, as a witness in his own behalf, proved an oral agreement of employment made at defendant’s store, 77 Greene street, in January, 1894, for the term of one year, to relate back and commence from December 1, 1893. This was at variance with the complaint and a surprise to defendant. To substantiate plaintiff’s case, only one other witness was called. He was Simon Meyers, who was, in 1894, the bookkeeper of defendant, had left defendant’s employ after plaintiff did, was on bad terms with defendant, and not at all friendly to him. He testified that plaintiff gave him the former written contract of employment with certain lead pencil changes made thereon (amongst others 2 per cent., over erasure of 1 per cent.), and asked him to make two copies thereof, but his testimony fails to show that the defendant knew anything about the lead pencil changes, or that he assented thereto, or assented to any contract in regard to the 2 per cent, commission, or that the copy contract was ever signed, or that plaintiff ever asked defendant to sign it.

The defendant, George Harris, and his wife, Annie N. Harris, deny that any contract whatever was made by defendant with plaintiff, in regard to the 2 per cent, commission, and assert that in November, 1893, the plaintiff agreed to remain with defendant for another year under the old contract. . It further appears that during the whole year of 1894, plaintiff received from defendant the $20 weekly and 1 per cent, commission on the sales.

Thus it appears that the plaintiff has not made out his case by a preponderance of evidence, as the law requires, and particularly not, inasmuch as the inferences that may be drawn and the probabilities that may be judged from the evidence tend in favor of the defense.

As to the motion for a new trial on ground of newly-discovered evidence, we have seen above that, although the appellant alleged *650■the contract of employment as made on or about December 1, 1893, ■ the plaintiff, on the trial, proved it t,o have been made in J anuary, 1894, thus causing a suprise to defendant and finding him unprepared to refute that fact.

The affidavits of Harris, his wife, and the physician, S. Martus. show that during the month of J anuary, 1894, the defendant wa¿ ■sick and constantly confined to his bed in his house. . If so, de fendant could not have made the oral contract of employment with plaintiff, at the latter’s store at Ho. 77 Greene street, as plaintiff testified.

The affidavit of Morris H. Miller shows that in December, 1893, . the plaintiff told him that he had agreed to remain with the defendant for another year at the same pay, and Simon Meyers, the bookkeeper, who, on the trial, testified in plaintiff’s favor, now makes, affidavit that Exhibit A, the above-mentioned written con- ■ tract, with the lead pencil changes on it, which plaintiff gave, him .to copy, was not the paper that was handed to him by plaintiff, as he had testified to, and that the. one handed to him was a written paper and not a typewritten paper.

We think justice requires us, under the particular circumstances of this case, to give the defendant an opportunity to produce and have submitted to a jury this newly-discovered evidence after the surprisé aforesaid.

Whether justice does require such action, depends largely, if not entirely, upon the nature of the evidence, the weight to be given to it, the manner in which it was presented and the opportunity that the adverse party had to meet it. Doorley v. O’Gorman, 52 N. Y. Supp. 536-538. A new trial for newly-discovered evidence will not be denied, because the evidence is cumulative, if it is of such probative force that it might probably change the result.' Keister v. Rankin, 54 N. Y. Supp. 274.

The order appealed from denying motion for new trial on newly-discovered evidence is reversed, with $10 costs and disbursements, and the motion granted upon payment by the defendant of the taxable costs in the action, except extra allowance.

Fitzsimons, Oh. J., and O’Dwyer, J., concur.

Order reversed, with $10 costs and disbursements, and motion granted upon payment by defendant of taxable costs in action, except extra allowance.