William S. Dalrymple, Respondent, v. David H. Hannum, Appellant

William S. Dalrymple, Respondent, v. David H. Hannum, Appellant. (Argued March 18, 1873; decided June term, 1873.) An order denying a motion for a new trial, on the ground of surprise and newly discovered evidence, is not reviewable in this court. This was an action to recover damages for fraud in the sale or exchange of lands. Plaintiff exchanged his farm with defendant for certain, Michigan lands, which exchange was induced by fraudulent representations of defendant as to the location and quality of his land. In the negotiations no price was put by the parties upon either parcel, but in the deeds the consideration for the Michigan land was stated to be $1,900, and of the farm $4,000; defendant accounted to plaintiff for the difference of $2,100. Upon the trial of an action for the fraud, defendant offered to prove that the farm was, in fact, not worth over $2,500, as bearing on the question of fraud, which evidence was rejected. Held, no error; that the evidence was not material either upon the question of fraud or damages. Plaintiff was permitted to prove, under objection, that he offered to reconvey the Michigan land to defendant for $300, which offer was declined. Held, no error; that the evidence was proper as hearing upon the question of damages. The jury rendered a verdict for plaintiff for $1,200. Defendant moved for a new trial, upon the ground of surprise and newly discovered evidence; the motion was denied and the order denying was affirmed by the General Term. Held, that this order could not be reviewed by this court. Oliver Porter for the appellant. M. M. Waters the for respondent. [MAJORITY — Reynolds, C.,] Reynolds, C., reads for affirmance. All concur. Judgment affirmed.