#### Meyer Zettel, Respondent, *v.*James Taylor, Appellant.

Second Department,

December 30, 1908.

New trial—perjury.

Although a defendant sued for personal injuries did not controvert the plaintiff’s evidence at trial, a new trial will be granted where it is clearly shown that the plaintiff committed deliberate perjury when testifying as to the extent of his injuries.

Hooker, J., dissented.

Appeal by the defendant, James Taylor, from an order of the Supreme Court, made at the Kings County Special Term bearing date the 28th day of July, 1908, and entered in the office of the clerk of the county of Kings, denying the defendant’s motion for a new trial upon the ground that the judgment was procured by perjured testimony of the plaintiff, and upon the grounds of fraud and newly-discovered evidence.

*W. E. Benjamin,*for the appellant.

*Nathan D. Stern [Julius J. Michael*with him on the brief], for the respondent.

Rich, J.:

The defendant was not informed of the time of the trial, and was consequently not present in court. He was represented, however, by counsel, and we cannot say that the result would have been different had he been present.

The verdict awarded plaintiff $500 damages. The action was brought to recover for personal injuries, and the judgment has been affirmed by this court (128 App. Div. 251).

Upon the trial the real question submitted for the consideration of the jury related to the extent of plaintiff’s injuries. After the accident he was taken to a hospital, where he remained about an hour, and he then went to the residence of his mother-in-law, where he was treated a few times • by Dr. Lesser. After two days he was taken in a carriage to his home.

Upon the trial he testified: “ When I got home, I laid in bed, I was confined to my bed about eight weeks; during that time I had pains in my head, at the part of the head where the hammer struck. *643When I got to my mother-in-law’s with my sister the first thing they did they sent for a doctor. I went to bed; they undressed me. That same day the doctor came. I could not tell you how long before the doctor came. I do not remember that. I don’t know. Q. You were conscious all this time, weren’t you, when you were home ? A. To, sir; I don’t know what was done to me. I don’t know when the doctor came ; I don’t know anything. I do not remember what happened to me; I don’t know where I was. I know I was lying in bed, yes. I did not know anything. The do'ctor came soon, of course, when they sent for him — soon he came; 1 did not eat no supper. I don’t know whether it was before or after supper. I had not lunch then. I could not tell you if it was before the supper time of the family or afterwards. I think it was night time. I don’t know. Daytime was night by me at that time, too. I don’t know how long the doctor stayed there when he did come. He opened my bandage and put a new bandage on and gave some medicine to me. I don’t know what medicine. * * * The doctor came the next day, I do not remember what time in the day, I do not know. I do not know how long he was there. I don’t know what he did. I do not remember that. I was in bed, I know 1 was lying in bed. My meals were brought to me near the bed; certainly I was not up. The doctor did not come to Henry street, the third day. It seems to me that he called about four times in Henry street. I was in Henry street about two days and the doctor came about four times. I do not remember whether he came twice a night or twice a day; about four times, yes. * * * I stayed in bed all the time that I was at my mother-in-law’s until the time I got ready to leave and went to my home. I remained in bed. I do not remember the circumstances of my leaving. I know how I got from my mother-in-law’s to my own home in Brooklyn. I know that I was going with the cab; that is all I remember. I got into a cab from Henry street; my brother-in-law took a cab for me and took me to Brooklyn. When I got to Brooklyn, I went to bed again.”

In answer to the court: “ How long did you remain in bed after you got home, without getting up at all ? A. Oh, about two months.”

*644In answer to Hr. Benjamin: “ I know abont this. I know without being told that I was there in bed for two months, through all that time I never got up, night or day.”

In answer to the court: “ During the two months he is talking about, did you have your clothes on at all during that time ? A. Ho, sir ; I only had-—-a month later I just walked over the rooms by having my pants on; that is all, nothing at all.”

In answer to Mr. Benjamin: “ Until, as I say, abont a month later, I remained in bed all the time; had a walk for about two minutes. I did not sit at the table with the rest of the family until about two months later; not for two months, and my meals were .brought to> me in my room. I stayed in my room. I did not go out of the house. At the end of two months, well, I was trying to go to work and make a living for my family. I did go to work at the end of two months. I do not remember exactly the day that I went to work. * * * How I remember it that I brought a bill from the doctor. Dr. Lesser, paid $50. I paid him. I tell you the truth, I do not — I don’t know what I am talking about. My head pains me now, just as good as before. * * * I paid him in his office. I do not remember if by cash or check, I do net know. I don’t know when I paid him, I do not remember it; about a month or two ago, about that. It was not longer than a month ago that I paid him. This doctor called about 20 or 25 times. I don’t know whether it is 20 or 25 times. He did not call every day exactly. I was in my house two months laid up. Q. And during that time he called these 20 or 25 times ? A. Well, at first he called. I think .he called when I was — he called — after that called a little later. I think he called about twice a week or three or four times a week. He did not call every day. He left medicine for me when he called. Medicine to take, some pills to take for me, also and to rub me in the skull. I had to change the bandage on my head about every two days — every day.”

In answer to the court: “ I kept the bandage on from the time it was first put on until finally the last one was taken off, about six weeks, five weeks, or so.”

In answer to Mr. Benjamin: “For five or six weeks I had the bandage on, and then it was taken off for good, and meantime it was taken care of by the doctor — taken off and a new one put on. *645Some of those times I used, to call the druggist man up to bandage it over, at the time he was not coming up.”

Cross-examination by Mr. O’Brion: “ The name of this doctor that attended me was Lesser. His office is in Henry Street.” “ Q. After yon left the hospital have you had more than the one doctor? A. Only one doctor. * * * Q. And housed to visit you at your house? A. Sir? Q. Did this doctor come away from Henry Street to your house in Brooklyn every time he came to see you ? A. I do not remember that, whether it was the same doctor or not. I know the doctor came. All I remember is that I know a doctor attended me two months. Q. Did you ever pay any other doctor for treating you in reference to your injuries except this doctor whom you have mentioned with an office on Henry Street ? A. I did not pay anybody else but him. Q. And he is the only doctor whom you remember treating you ? A. That is the only one I remember, that is all; but I don’t know exactly whether he was the same one attended to me in Brooklyn, but I remember that he attended me.”

The witness deliberately falsified. As a matter of fact, Dr. Lesser never called upon the plaintiff after he left the residence of his mother-in-law; he was not confined to the bed two months, and he did not pay fifty dollars to the doctor.

In his deposition, taken before a referee, the doctor says: *“*I do not remember treating Zettel about that time at Ho. 253 Henry Street. I was there not over three times at that place. Q. Did you also treat him at your office, 205 Henry Street, and if so, when and how often ? A. I do reyaember treating him at my office, but do not remember exactly how many times. It was about twelve times. Q. Then he called personally at your office after you attended him at the house where he was first stopping, 253 Henry Street? A. Yes, sir. Q. Did you ever go to see him at his house in Blake Avenue, Brooklyn, or anywhere outside of your office and 253 Henry Street? A. Ho, sir. Q. Do yon remember how soon it was after your first visits to him outside the office that he called at your office for treatment ? A. I don’t remember. Q. Could you tell whether it was soon after? A. It was not very long after I treated him. Q. For how long a period after the first visit did you see him for treatment ? *646A. I don’t remember. Q. Can’t you tell, doctor, whether it was a week or a month after? A. I don’t remember. Q. Is your best recollection that it was not longer than a month after that yon continued treating him? A. I don’t know. Q. But at any rate you do know positively that you never went outside of your office to treat him except these first visits at 253 Henry Street ? A. I do. * * * Q. Did you ever render him a bill? A. He paid me for each visit each time, but at one time either he or his wife came in and asked me for a receipt and said he wanted to settle the case. She said to me it was either $30 or $35, and I gave her a receipt. I took a blank bill and put down $30 or $35. I do not know the exact amount I had been paid. I was paid $2 for each visit to 253 Henry Street and $1 for each office call, and I was paid in cash every time. Q. Hpon the trial of this case Mr. Zettel said, *‘*It was not longer than a month ago that I paid him.’ The trial was February 4,1908. Did he pay you any money at the time he said, a month before February, 1908 ? A. Ho, sir. Any payment that was made was made at the time of the treatment in the fall of 1905. Q. Did he have a bandage on every time he came to see you ? A. Hot all the time, but until toward the end, when the bandage was taken off. Q. Do you remember where he was when you first called to see him at 253 Henry Street ? A. In bed. Q. Did you call more than once that day ? A. To the best of my recollection I think I was there once on each successive day for three days. If I am called twice in one day I always refuse. Q. Did he tell you where he lived when he came ? A. I knew be was a Brooklyiyman ; Mrs. Levy told me. Q. Did he tell you he was coming over from Brooklyn to see you ? A. I knew he was a Brooklyn man and came over from Brooklyn to see me.”

The plaintiff’s evidence upon the trial was wholly uneoutrovei’ted, and it can hardly be said that it did not influence the jury to the prejudice of the defendant.

The order must be reversed, with costs, and motion granted, with costs.

Woodwabd, Jenks and G-aykor, JJ., concurred; Hooker, J., dissented.

Order reversed, with costs, and motion granted, with costs.