#### Thomas B. Oakley, plaintiff and appellant, *vs.*William S. Sears, defendant and respondent.

1. Evidence of the admission by one party to an action of a fact or occurrence, material to the issues therein, and made before the trial, in regard to which his testimony on such trial conflicted with that of the adverse party, but not known or discovered or likely to be, by the latter, before such trial, is sufficiently newly discovered evidence, to require the granting of a new trial.

2. Such evidence, not being directly of knowledge of the fact or occurrence admitted, but merely of an admission tending to prove it, is not cumulative, being of a different kind and occurrence from that actually introduced on the trial, and entirely independent.

3. Although proo^ of such admission might detract from the reliability of the ^testimony of the party making it, it might do so as well oh the ground of want of memory as of veracity, and therefore does not necessarily impeach the character of the witness. , ■

4. *So held,*where^the action was on a bank check, against the drawer thereof; and the point at issue was whether the plaintiff took it with knowledge that it had been originally delivered to a third person, with the understanding that it should only be paid out of funds to be provided by the latter.

(Before Boswobth, Oh. J. and Mohcbiee and White, JJ.)

Heard May 16,1863;

decided May 30, 1863.

This was an appeal by the plaintiff from an order made by Mr. Justice Barboub, in March, 1863, granting a new trial. The action was tried originally February 3, 1863, before him and a jury, and a verdict rendered for the plaintiff. A case was made by the defendant, upon which, as well as upon affidavits, he moved at a special term for a new trial, upon the ground of newly discovered evidence. The motion having been granted, the plaintiff appealed from the order granting such new trial.

The action was brought upon a bank check drawn by the defendant to the order of the plaintiff. The defense was that a previous check in renewal of which this one was given, was made at the request of one White, and delivered to him, payable to plaintiff’s order, with the understanding between the defendant and White, that the check was not to be paid until White gave the defendant funds to meet it. That such first *74check was given hy the defendant to White for the purpose of enabling the latter to borrow money of the plaintiff. That the check in suit was given on the surrender of the original check, upon similar conditions, and that White never gave any funds to the defendant to meet it.

The plaintiff being examined as a witness in his own behalf, testified that he paid $12,000 in money to White for the original check. The defendant being examined as a witness in his own behalf, testified that the original check was given under the circumstances set up in his defense, and that some time after its date, the plaintiff called upon him one day at his office, when the following conversation took place. The plaintiff said “the check (this first check,) has not been paid.” Said I, “You know the arrangement. That you are not to have the money *until White puts funds into my hands.*Whenever he puts it into my hands you shall have it.” Said he, “do you expect it soon ?” I said “ Mr. White said it was coming soon, and whenever it ■ comes, you will get it.” The plaintiff being recalled and examined on his own behalf, testified that prior to taking the original check from Mr. White, the defendant, as he told the plaintiff, held in his possession a guaranty for the payment of the check. Before the plaintiff, took the check he wanted to know whether the check was good; whether the defendant had a valuable consideration for it. The latter stated, that Mr. White was his client with a lawsuit pending, in which a large amount of money had to be put up in court. He had collateral security with which he could pay by twenty-four hours’ notice, and he would, and he (the plaintiff,) accepted the check upon those remarks, from the defendant, knowing, as he said, he had security in his posession. ' The plaintiff held the original check and notified the defendant by letter, and gave him the twenty four hours’ notice that he required it paid: To extend the time to enable Mr. White to consummate his matters, or the defendant his lawyer, the second check was given. The plaintiff had no conversation with him about the second check.”

The plaintiff had a verdict.

*75The substance of the newly discovered, evidence upon which the defendant moved, is stated in the opinion of the court.

*George R.*Thompson, for the plaintiff, appellant.

No error, so far as this appeal is concerned, is claimed to have occurred upon the trial. It was error for the court at special term to grant a new trial on the case. The sole question is whether the court below was right in granting a *neto trial on the ground of newly discovered evidence.*

I. No newly discovered evidence was revealed upon the motion sufficient to sustain the order. In respect to granting new trials on the ground of newly discovered testimony, the following principles are well settled,- viz: 1. The testimony must have been discovered since the verdict. 2. It must have been such as could not have been attained with reasonable diligence in the former trial. 3. It must be material to the issue. 4. It must go to the merits of the case and not to impeach the character of a former witness. 5. It must not be cumulative. *(People*v. *Superior Court,*10 *Wend.*285. *Porter*v. *Talcott,*1 *Cowen,*359.)

II. The order granting the new trial in this case violates several of these rules. 1. The evidence could have been obtained at the trial by the defendant with reasonable diligence. The case ought to be free from laches. *(Williams*v. *Baldwin,*18 *John.*489. *Hollingsworth*v. *Napier,*3 *Caines,*182. *Kendrick*v. *Delafield,*2 *id.*67. *People*v. *Marks,*10 *How. Pr.*261. *Leavy*v. *Roberts,*8 *Abb. Pr.*310.) 2. The evidence, if obtained, is not material to the issue, and would not have been admitted on trial. The check is dated October 25, 1860, and is payable October 20,1860. . The statement alleged to have been made by the plaintiff to Parsons, was not made until November, and merely shows that the plaintiff knew *at that time*how Sears came to give the check. There is not a particle of evidence that he knew any thing about it when he parted with his money on the strength of the check—• what he discovered afterwards amounts to nothing. 3. The proposed evidence, if admitted, would tend to impeach the *76plaintiff. Oakley swears he never knew of any such arrangement as that testified to by Sears. The proposed evidence directly contradicts that statement. When the action is between the original parties, a new trial will not be granted to admit proof of admissions of a plaintiff as newly discovered evidence. *(Guyot*v. *Butts,*4 *Wend.*579.) 4. As to what is impeaching evidence, see *Brown*v. Hoyt, (3 *John.*255; *Shumway*v. Fowler, (4 *id.*425.) *Harrington*v. Bigelow, (2 *Denio,*109;) *Meakim*v. *Anderson,*(11 *Barb.*215;) *Beach*v. *Tooker,*(10 *How. Pr.*297.) 5. The proposed evidence establishes no new fact, (a.) It merely goes to disprove, if evidence at all, what has already been sworn to by Oakley. A new trial will not be granted by means of the discovery of such evidence. *(Halsey*v. *Watson, 1 Oai.*24; *S. G. Gol. & Gai. Gas.*160.) *(b.)*The evidence discovered is cumulative. If newly discovered evidence relates to any fact proved or controverted, whether bearing upon" the issue directly or collaterally it is cumulative. *(Leavy*v. *Roberts,*8 *Abb. Pr.*310. *Brisbane*v. *Adams,*1 *Sand.*195.)

The evidence is to a point testified to by Sears, and denied by Oakley. It is strictly cumulative, because it goes to show the same fact exactly. *(See Adams*v. *Bush,*23 *How. Pr.*262.)

*L. S. Chatfield,*for the defendant, respondent.

I. What is cumulative evidence is not very well settled, but the leading distinction is that it must not be of the same *hind*to establish the same fact, as in 4 *Wend.*579, where the new evidence is *direct,*and the former was *circumstantial,*to prove the same fact. *(Graham’s Pr.*630.) Such evidence is not of the same kind or character. One is direct, the other is circumstantial. *(Seeley*v. *Chittenden,*4 *How. Pr.*264. 10 *Wend.*285. *Porter*v. *Talcott,*1 *Cowen,*381. *Simmons*v. *Fay, 1 E. D. Smith,*107. *Sargent*v.-, 5 *Cowen,*106. 10 *Barb.*307. *Guyot*v. *Butts,*4 *Wend.*579. *Platt*v. *Munroe,*34 *Barb.*297.)

II. When parties are the only witnesses, if evidence other than that of the parties can be obtained, it is certainly de*77sirable that it should be obtained, and this remedy should be most liberally applied.

III. The gravamen of these motions is the furtherance of justice, and to ascertain the real truth. It is purely a discretionary motion, governed so far as it may be by precedents, *(Platt*v. *Munroe,*34 *Barb.*297,) and it is submitted that when a Hew trial is granted, the order granting is not an appealable order. (10 *Barb.*303.)

By the Court, Bosworth, Ch. J.

The plaintiff and the defendant were the only witnesses as to the interviews between themselves, and what was then said between them; or as to interviews between thém and White when the three were together; Their testimony is in direct conflict throughout. The suit is upon a check made by the defendant. The judge charged that “if Mr. Sears is to believed, it (the check) was delivered to White to be used in a certain manner and for a certain purpose. It was delivered with the understanding that it was not to be paid by Mr. Sears, the maker of it, except out of the funds which should come into his hands belonging to White. If you believe that statement of Mr. Sears, the defendant is entitled to your verdict.”

Assuming that instruction to be correct, as perhaps we must for the purposes of appeal, *(Tappan v. Butler,*7 *Bosw.*487 ; *Bunten*v. *The Oriental Mut. Ins. Co.,*4 *id.*255;) but without expressing any opinion as to its accuracy, it is quite clear, on this assumption, that the newly discovered evidence is material. Evidence of the plaintiff’s declarations, that he knew when he received the check, that it “ was a loaned check without any consideration being paid to the said Sears for it,” would naturally lead the jury to believe Mr. Sears’ statement as to the origin of the check and the use it was to serve ; as his testimony was in no way impaired, except by the contradiction by the plaintiff, in testifying to what took place between him and Mr. Sears before the original check was accepted by the plaintiff. The defendant explicitly denied that he knew or conversed with the plaintiff before he received the *78original check. But for the testimony given hy the plaintiff as to an interview between himself and the defendant, before the plaintiff received the original check, to the effect that Sears told him “he had collateral security-with which he could pay by 24 hour’s notice, and he wouldthe defendant, under the charge made, for aught we can perceive, should have had a verdict in his favor.

Proof, by the testimony of third persons, that the plaintiff knew or had notice when he took the original check, .that it was made without consideration, and as a memorandum check, and not to be paid or demanded until White put Sears in funds to pay with, would he proof of facts which, with Sears’ testimony as to the origin of the check, if unimpeached, would entitle him to a verdict. The circumstance that proof of such facts would tend to discredit the plaintiff, does not convert the evidence into mere impeaching evidence. It. is nevertheless as truly direct and pertinent evidence, to the .merits, as if the plaintiff had not testified to any conversation between himself and Sears before taking the original check.

Declarations of the plaintiff; that he knew the check was so made, and was to he so used, is competent evidence to establish the same fact, and is none the less evidence in chief, because it may also tend to impeach.

It is not cumulative, merely. The defendant did not offer any evidence, nor testify himself, either as to any declarations of the plaintiff to Parsons on the subject, nor as to any notice to, or knowledge of, the plaintiff-at the time he took the original check, as to its origin and the use to be made of it, except in so far as the alleged conversation prior to giving the second check would tend to show he had such knowledge. The plaintiff denies that any such conversation took place.

The newly discovered evidence is direct and independent testimony, tending to show notice to the plaintiff, of facts which, if communicated and existing, might prevent his recovery. It is not to a point upon which any testimony was directly given or offered hy the defendant, at the trial. If his testimony has' any claims to fairness, it is to a matter- which *79he had no right to expect would he material. Eor if the check was made as he swears it was, and was transferred as collateral to a precedent debt, there could be no recovery.

And if it be true, as the plaintiff swears, that he paid $12,000 cash for the check, he will of course recover if he took it in good faith, and without notice that it was fraudulently diverted from the purpose for which it was made. But if he had the notice which Parsons’ affidavit tends to show he had, he may not be able to recover.

What Mr. Parsons’ testimony may be, we can only infer from his affidvavit. We understood it to import the making of a declaration, to him, by the plaintiff, that he knew when he took the original check, what he represents the plaintiff to have stated that he knew.

*Simmons*v. Fay, (1 *E. D.*Smith, 107,) and the cases there cited, show that the newly discovered evidence can not be regarded as merely cumulative or impeaching testimony.

The order should be affirmed.