Josephine A. Cheever, Respondent, v. Scottish Union and National Insurance Company of Edinburgh, Appellant

Josephine A. Cheever, Respondent, v. Scottish Union and National Insurance Company of Edinburgh, Appellant. (No. 2.) ■New trial because of newly-discovered evidence — affidavits of the witnesses or a statement that they cannot be obtained are necessary. TJpon a motion for a new trial upon the ground of newly-discovered evidence, affidavits of the newly-discovered witnesses, to the effect that they are ready " tó'swear to the facts claimed'to be newly discovered, must be presented, or it ' must be shown that such affidavits cannot be obtained. Appeal by the defendant, the Scottish Union and National Insurance Company of Edinburgh, from an order of the Supreme Court, made at the Kings County Trial Term and entered in the office of the clerk of the county of Nassau on the 26th day of November, 1902, denying the defendant’s motion for a new trial upon the ground of newly-discovered evidence. Donald McLean, for the appellant. Hugo Wintner, for the respondent. [MAJORITY — Woodward, J. :] Woodward, J. : A sufficient reason for affirming the order denying defendant’s motion for a new trial upon the ground of newly-discovered evidence is found in'the fact that the moving papers do not contain the affidavits of the newly-discoveréd witnesses nor offer any excuse for their absence. The rule of practice is well established that motions-of this Character- must be founded on the affidavits of the newly-discovered witnesses; that they are ready to - swear to the facts-claimed to be newly discovered or showing that such affidavits cannot be obtained. (Matter of Cohen, 84 Hun, 586, 589, and authorities there cited.) In the case before us there is an affidavit of an attorney that in another case certain witnesses testified to facts which resulted in a verdict of a jury different from that in the case-at bar, although both actions related to the same property, and an assistant testifies that the evidence as taken from the minutes of the other trial was as set forth in the record. There is no excuse given for the fact that the alleged new witnesses do not make affidavits ; there is no declaration that these alleged new witnesses are living and will be called on a new trial, or that they would testify the saméin this action as in the one where this testimony was previously given. More than this, the case at bar was tried upon the theory of fraud and the newly-discovered evidence is merely cumulative upon this point, and it is urged only'that Upon the other trial it resulted in producing a less verdict, in proportion to the amount involved, than in the case at bar. ' We are of opinion that there is no reason for granting a new trial in this cáse and that the moving papers do not warrant an interference here with the sound discretion exercised by the court at Trial Term. The order appealed from should be affirmed, with costs. Bartlett, Hirschberg, Jeitks and Hooker, JJ., concurred. Order denying motion for new trial on the ground of newly-discovered evidence affirmed, with costs.