Fairchild a. Durand.

ment; and if the defendant who was not brought into court in the first action (by the original summons), does not, in pleading, deny his original liability, the judgment alone will be sufficient evidence to entitle the plaintiff to a verdict. He need not prove the original demand."

Section 380 also provides that subsequent pleadings and proceedings may be the same as in an action; and the issues may be tried, and judgment may be given, in the same manner as in an action. So section 381 keeps up the distinction, by preserving the analogy to an action.

In Sturgis a. Hocks & Titus (Special Term, January, 24, 1854), when a newly served defendant failed to appear, the judgment, approved on consultation, was, reciting the original judgment, service of summons, omission to appear, and adjudging that Titus was bound by the judgment so entered in the same manner as if he had been originally summoned.

I do not find that the view of the learned judge as to the Code has been shaken by the decision in Oakley a. Aspinwall, nor any thing else I have found.

It is true that the action cannot be said properly to have been commenced as regards the other defendants, until service of the summons (§§ 127, 139).

But the theory of the Code then appears to me to be this: the action is one and single; the judgment on service upon a joint contractor is available as to joint property, thus far affecting the absent debtor. The proceeding under chapter 11 of Title 12 is a proceeding in that action, not a new action. (See the heading of Title 12.) It is the continuance of the same identical action, by means of provisions for bringing in at a sub-, sequent period other of the defendants to that action; Bartholomew remaining upon the record a party to the cause. He is a citizen and resident of New York; and as the objection would be fatal to the removal before the judgment, it must be equally

so now.

There is, however, great force in the argument, that the action is finally at an end as to Bartholomew; even the right of appeal gone. And then the whole cause is really between the plaintiffs and these defendants.

But suppose the judgment was shown on the new proceedings to have been without ground of fact or law, is it clear that it

Leavy a. Roberts.

would be perfectly operative as to Bartholomew? See the cases 1 Hoff. Pr., 554, and note; and Lingan a. Henderson (Bland's R., 254).

The result of my examination of this question is, that the case is not within the act of Congress, and the application must be denied.

Order accordingly.

LEAVY a. ROBERTS.

New York Common Pleas; Special Term, December, 1858. Again, Special Term, May, 1859.

NEW TRIAL.-CUMULATIVE EVIDENCE.-CASE ON APPEAL.

It is only when a party was wholly free from negligence in preparing for the trial, that he is entitled to a new trial on the ground of newly discovered evidence.

If newly discovered evidence relates to any fact proved or controverted, whether bearing upon the issue directly or collaterally, it is cumulative, and not ground of new trial.

The rules governing motions for new trials on ground of newly discovered evidence should be strictly applied where the parties have been examined as witnesses on the trial.

Where an issue of fact is had by the court without a jury, and a decision rendered thereupon, notice of the decision, given by the prevailing party before the actual entry of judgment by the clerk, is not notice of judgment such as is necessary to limit the losing party's time to appeal.

The preparation and use of a case, on motion for a new trial on ground of newly discovered evidence, does not preclude the party from submitting a new and different case on appeal from a judgment subsequently entered, after denial of his motion.

I. December, 1858.-Motion for new trial.

The object of the action was to recover from the defendant the value of certain mantels furnished and put up by the plain

Leavy a. Roberts.

tiff in houses owned by one Cronk. The defence was, that the mantels were not furnished for the defendant at his request, but were furnished and put up for and at request of Cronk. On the trial the plaintiff prevailed. On ground of newly discovered evidence, the defendant now moved for a new trial. The contents of his affidavit are sufficiently stated in the opinion.

Cummins, Alexander & Green, for the motion.

John Graham, opposed.

BRADY, J.-The motion for a new trial on the ground of newly discovered evidence must be denied, for two reasons, viz. :

The evidence is cumulative, and the defendant has been guilty of a want of diligence.

The question presented and controverted on the trial was, whether the defendant was indebted to the plaintiff as charged in the complaint, upon a contract made between him and the plaintiff. The defendant, who was examined on his own behalf, after the examination of the plaintiff, denied that he had contracted as charged. The plaintiff then offered rebutting testimony, which being corroborative of the plaintiff's statement, was deemed controlling by the presiding judge. The defendant, in one of his affidavits used on this motion, states that he was not aware of the nature of the rebutting testimony at the time of the trial, not having taken any pains to inform himself—not imagining the possibility of such erroneous testimony on the part of the plaintiff and the witness Cronk; and, upon the allegation of a discovery of evidence bearing upon the question involved, asks a new trial. One of the witnesses, whose evidence is said to have been discovered, is the son of the defendant. Another witness, J. M. Grenell, was in court during the trial, attending there in behalf of the plaintiff; and the third, Buckbee, reveals certain acts and declarations by the plaintiff inconsistent with the claim made against the defendant. It also appears that Grenell was known to the parties in connection with the work and labor done by the plaintiff, and that the evidence of the defendant's son relates to an interview between the plaintiff and defendant, in which the plaintiff committed acts and made declarations inconsistent with the claim

Leavy a. Roberts.

made against the defendant. It would seem, in reference to Grenell and the defendant's son, that the defendant was guilty of negligence in not procuring their testimony, or in not making any efforts to ascertain what either of them knew of the controversy, and the truth of defendant's statement; that he had not taken "any pains" to inform himself, is shown without the admission which he makes. That he was not diligent in preparing his defence, is very clear; and this alone excludes him from any consideration on a motion of this kind. It would be establishing a grievous precedent, and one of great public inconvenience, to interpose in any other case than one of indispensable necessity, and wholly free from negligence. (Per Chancellor Kent, Floyd a. Jayne, 6 Johns. Ch. R., 482.) There is, however, still another reason why the motion should not be granted, as before suggested. The testimony discovered is cumulative. It is said by MARCY, J., in Guyot a. Butts (4 Wend., 579), that the kind and character of the facts make the distinction between what is cumulative evidence and what is not; and that the facts may tend to prove the same proposition, and yet be so dissimilar in kind as to afford no pretence for saying they are cumulative.

It does not appear distinctly by any adjudication in this State, what is meant by cumulative evidence in its bearing upon motions of this kind; and it is difficult, perhaps, to determine what is cumulative, and what is not, by any general definition. A series of facts may be established, all tending to prove a claim or defence; and yet a fact not proved, having the same effect, may be discovered after the trial: the evidence in the latter case may be said to be cumulative, so far as it relates to the main fact or facts in issue, but it clearly is not as to the subject it embraces. It is evidence of a fact not proved, and therefore not controverted. And this, I think, is what Judge Marcy suggests in the quotation above. If the evidence be cumulative because it relates to the issue, or one of the issues about which any proof has been given, then a new trial upon newly discovered evidence would be an impossibility; but if the rule be, that newly discovered evidence of some material fact relevant to the issue, and which was not proved or controverted on the trial, is not cumulative, then there may be many cases in which a new trial would be matter of justice. This I un

Leavy a. Roberts.

derstand to be the guide in questions of this kind. If, therefore, new evidence relates to any fact proved, whether bearing upon the issue directly or collaterally, it is cumulative; and such I understand to be the character of the new evidence disclosed on this motion. The plaintiff, by his statement on the trial, was shown to have committed acts and made declarations inconsistent with the alleged contract between himself and the defendant, and which, if unexplained or uncontroverted, would perhaps be sufficient to prevent its recovery. The evidence discovered is of the same complexion. It affects the validity of the plaintiff's claim, so far as it proves conduct at variance with the claim set up here, and nothing more. (See the case of The People a. The Superior Court, 10 Wend., 286.) There are cases in which a contrary rule has been applied; but they were exceptions to the general maxim, and distinguished by very peculiar circumstances, calling for the exercise of a very liberal discretion. This is not one of those cases. There are, it is true, conflicting elements here, and perhaps the statements of the parties are irreconcilable; but these features are common to the great majority of cases, and more particularly since the law of the land has given to the parties the right to be examined on their own behalf. In cases where they are examined, the rules which govern motions for a new trial, on the ground of newly discovered evidence, should be applied strictly, in my opinion. Motion denied, with $10 costs.

On appeal to the general term this decision was affirmed, February, 1859.

II. May, 1859.-Settlement of case.

On making the motion for a new trial above stated, the defendant, before judgment was perfected, had obtained and served an order staying plaintiff's proceedings pending the motion. His motion for a new trial was made on affidavits, and a case prepared for the motion.

The motion having been finally denied, the plaintiff proceeded to perfect his judgment, and thereupon the defendant appealed from the judgment, and served a new case. The plaintiff served amendments proposing to strike out this second