#### Neva C. Healy, Plaintiff, *v.*Dorus Healy, as Administrator, etc., et al., Defendants.

(Supreme Court, Monroe Special Term,

August, 1900.)

Witness — When prior similar declarations may be shown to prove that testimony given was not colored.

The rule that if a witness is charged with giving his evidence under a motive prompting him to make a false or colored statement, it may be shown that he made similar declarations at a time when *343such motive did not exist, applies only to .corroborative evidence and is not applicable to such declarations when offered as affirmative evidence to establish the defense.

This action was brought to obtain specific performance on an oral agreement on the part of Joshua Healy, since deceased, to give the plaintiff the share of a child of his own in his estate. The plaintiff recovered judgment, 31 Misc. Rep. 636. A motion was made for a new trial upon the ground of newly-discovered evidence.

Raines & Miller, for plaintiff.

Fletcher C. Peck (James H. Stevens, of counsel), for defendants.

Nash, J.

It is sought to obtain a new trial for the purpose of introducing in evidence declarations of the decedent, Joshua Healy, made in his lifetime, tending to show that the contract, which the plaintiff alleges and which it has been found by the trial court was made by Joshua Healy with the plaintiff’s mother for and on behalf of the plaintiff, was not in fact made. These declarations of Joshua Healy, made in his own behalf or interest, are offered as affirmative evidence tending to establish the defense. The ground upon which it urged that these declarations are admissible, is that the declarations are within the exception held in Herrick v. Smith, 13 Hun, 446, and cases there cited. The rule as stated in Robb v. Hackley, 23 Wend. 50, is that where a witness is charged with giving his testimony under the influence of some motive prompting him to make a false or colored statement, it may be shown that he made similar declarations at a time when the imputed motive did not exist. As stated in Herrick v. Smith, *supra,*such testimony, correctly said to be dangerous, is to be accepted only under circumstances special in character, and then but for the purpose of corroborating the statement made upon the witness stand. Here the declarations proposed to be shown are to the effect that the deceased took the plaintiff without any agreement or contract, and that he had not adopted the plaintiff — affirmations of fact tending to disprove the allegations of the complaint and meet the case made by the plaintiff upon the trial, and not corroborative of the testimony of any witness for the defendants upon the trial.

*344The other alleged newly-discovered evidence is as to the conduct of the plaintiff while a member of the decedent’s family, which would have no direct bearing upon the question of the making of the alleged contract, and, if admissible for any purpose, are not of sufficient importance'to warrant the granting of a new trial.

The proposed contradiction of the testimony given by the plaintiff in her own- behalf on the trial is as to matters relatively unimportant, besides being evidence merely of an impeaching character, ’and, therefore, such as would not authorize the granting of a new trial upon newly-discovered evidence.

For these reasons I am of the opinion that the motion for a new trial should be denied.

Motion denied.