White v. Benjamin — 36 N.Y.S. 1135

Majority

p. 1135

WHITE et al. v. BENJAMIN et al.

(Superior Court of City of New York,

General Term.

December 18,1885.)

Headnote

Action by Eliza W. White and others against Edward M. Benjamin and others.

Smith & Dougherty and L. S. Tenney, for appellants.

Whitlock & Simonds (W. C. Beecher, of counsel), for respondents.

To warrant a new trial in this case the practice requires not only that the newly-discovered evidence be material, and that it has been discovered since the trial, but that the evidence could not, by the exercise of reasonable diligence, have been sooner discovered; and that it is so decisive in character as to make it appear with reasonable certainty that on another trial it would change the result. The defendants did not present a case bringing them within the rule stated, and no error was committed by the court below in denying their motion. The order appealed from must be affirmed, with costs.