#### Albert Behrens *et al.,*Pl’ffs, *v.*Simon H. Bloom, Def’t.

*(City Court of New York,*

*Special Term,*

*Filed January 26, 1889.)*

New tbial—When will not be geanted on • geotjnd on newly disCOVEBED EVIDENCE.

A new trial will not he granted on the ground of newly discovered evi*117dence unless it affirmatively appears that it was not owing to the want of diligence that the evidence was not produced at the trial; and it must also appear that the new evidence is of that controlling character which, carnes with it the belief that its presentation at the trial would necessarily change the result

■ Mothket ior a new trial on the ground of-surprise-and $ewiy .discovered evidence.

«/*. £?• *J&miifam&t.*for spotiofi j *DX X^rnMnit,*opposscl

McAdam, Ok. J.

There Is no aocomtoodatiag" rule of practice i-haf permits a plaintiff to proceed to trial hut lisli prepared to meet a defense intelligently pleaded, and If victorious retain, the verdict in Ms favor, but if defeated, fra&ke and diligence would have brought forward,might have prevented. The subsequent disclosure of such evidence often brings with it proof that the party not producing it was guilty of neglect, 'a circumstance that deprived the discovery of all merit; Finding after a trial that which could have been as readily found before, does not make the evidence “newly discovered” within the rule authorizing a new trial; for it must affirmatively appear, before the applicant is entitled to any relief, that it was not owing to the want of diligence that evidence was not produced at the trial.

The trial of an issue of fact is not an experiment to be repeated^ if unsuccessful, but a serious ordeal, requiring preparation and care, involving time, trouble and expense, not only to the parties litigant, but to the country, and every effort should be exerted to bring forward the necessary proofs or all documentary evidence to make it, as the law intended it should be the final determination of the issues involved, leaving to the appellate tribunal its appropriate duty of determining whether any and what errors were committed that may have influenced the verdict or prejudiced the defeated party. Eurzman, the new witness, is the stepson of the senior plaintiff, and resides with him, and the new documentary proof is a bill of sale which was on file in the register’s office at the time of the trial. Both could have been produced by the exercise of ordinary diligence, which, in the sense here employed, means the use of “ forethought,” and not “after thought.”

If every defeated litigant is to have a new trial simply because he has since discovered some witness or document whereby he could have made the weak points in his case stronger, or (to use a common phrase) because his aftersight was better than his foresight, but few verdicts would be allowed to stand. The new evidence is not of that controlling *118character which carries with it the belief that its presentation at the trial would necessarily change the result, and there is no just reason why the plaintiff should be again allowed to experiment with a new jury on the mere chance that they may come to a conclusion different from the first.

For these reasons the motion for a new trial, upon the ground of surprise and newly discovered evidence, must be denied. See *Whitney*v. *Saxe*(18 N. Y. State Rep., 1020) and cases cited. _