John J. Cunningham, as Administrator de Bonis Non of Erwin L. Coolidge, Deceased, Respondent, v. The City of New York, Appellant

John J. Cunningham, as Administrator de Bonis Non of Erwin L. Coolidge, Deceased, Respondent, v. The City of New York, Appellant. First Department, December 29, 1916. Mew trial—newly-discovered evidence. Defendant’s motion for a new trial made on the ground of newly-discovered evidence denied because the evidence could have been presented at trial and also because, had it been presented, it would not have changed the result. Appeal by the defendant, The City of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 16th day of June, 1916, denying its motion for a new trial made on the ground of newly-discovered evidence, and also from an order entered in said clerk’s office on the 5th day of July, 1915, denying a motion for the reargument of the prior motion. Charles J. Nehrbas, for the appellant. Alfred L. Marilley, for the respondent. [MAJORITY — Per Curiam:] Per Curiam: The order here appealed from should be affirmed. The alleged newly-discovered evidence is not such. It could have been presented at the trial or the fact that the alleged payments were made established, and if such evidence had been presented it could not have changed the result. The city paid Waring without any authority whatever. Besides, the city is fully protected under Matter of Cunningham (175 App. Div. 791), decided herewith. Present — Clarke, P. J., McLaughlin, Laughlin, Dowling and Davis, JJ. Order affirmed, with ten dollars costs and disbursements.