#### Elmer J. Albert, Resp’t, *v.*Elnathan Sweet *et al.,*App’lts.

*(Supreme Court, General Term, Third Department,*

*Filed February 24, 1890.)*

New trial—Newly discovered evidence.

If this court has power to grant a new trial upon the ground of newly discovered evidence after affirmance of the judgment in the court of appeals, such power should he exercised only in a very strong case; and not where the proposed new evidence is cumulative, nor where the evidence, if admissible, must have been known by defendant to exist at the time of trial.

Appeal from order denying motion for new trial made on the ground of newly discovered evidence.

The court of appeals has held that the evidence of the plaintiff thatthere was no *“*requirementto stop at New Scotland that a. m.,” was admissible as “involving” the opinion of plaintiff that the wording of the special order, “run to Albany in advance of time," authorized him to omit his stop. 116 N. Y., 363; 26 N. Y. State Rep., 738.

The moving affidavits show that these words do not, *in*fact, in *645the actual operation of railroads, have any such meaning or effect, that they do not authorize the omission of any stop which the train was required by the time table to make. The affidavits are •positive, and include those of the then traffic manager, Mr. Marcy, ■of the railroad in question, and the then superintendent of its northern division, Mr. Voorhees, and also the affidavits of the managers of the Mew York Central, Brie and West Shore. This is the newly discovered evidence.

*E. Winslow*Paige, for app’lts; *Amasa J.*Parker, for resp’t

Learned, P. J.

It is not necessary to decide that there could never be a case in which, after the affirmance of the judgment by the court of appeals, this court could grant a new trial for newly discovered evidence. If the power exists it should be exercised only in a very strong case. Such is not the present case.

The defendant may have been surprised by the decision in the appellate courts of the question of law as to the competency of certain evidence. But that would not justify us in ordering a new trial. The matter on which that evidence was thought to bear was the plaintiff's contributory negligence. On that matter the proposed new evidence was cumulative.

Again, evidence of the meaning which the telegraphic order would have in the minds of railroad officials of other roads, if ad-, missible, was such as the defendant must have known to exist at the time of the trial. That is, he must have known that he could then procure railroad officials who would testify to the meaning which, on their respective roads, that order would have.

Further. The affidavits of the plaintiff in opposition to the motion show what the meaning of that order was on the railroad in question, and thus show that the proposed evidence could probably have little effect. And it is quite reasonable to understand that a through freight train, except for the purpose of keeping on its schedule time, would have no reason to stop at a station where there was no car to leave and no freight to receive. So that, when such a train had by special order been directed to run in advance of time, it would be unreasonable that it should stop .at such a station.

Again, even if this train came up to the station at a fast rate of •speed, it might after passing have backed up and stopped at the •station. The time table did not regulate the speed of approach. At the most it only required the train to stop, and this stop was not necessarily before it had passed the station. The only object ■of the stop was to receive or deliver freight; and the train might have stopped after it had passed the crossing and then have returned.

Again, this time table was only for the regulation of the duties ■of those running the trains in respect to the company which employed them. The defendants had negligently pushed a car upon the crossing.

They were not using the crossing in any proper way; and they were guilty of negligence. Motwithstanding the accidental remark in the opinion of the learned judge that the failure to *646stop was material on the question of plaintiffs negligence, we have great doubt whether, as to one who is improperly on the track, it is negligence in the engineer to run ahead of time or not. to make a stop required by his time table, where such requirement to stop has reference only to the ordinary business of the road.

But that question it is not necessary to decide. The reasons are abundant for affirming the order of the special term.

Order affirmed, with costs and disbursements.

Landon and Mayham, JJ., concur.