Opinion
May Term, 1897.
Frederick W. Cameron, for the appellants.
Samuel S. Hatt, for the respondents.
On the trial of this action the plaintiffs sought to foreclose a mechanic's lien for the sum of $342.71, which they claimed to be the balance due them for lumber and other materials furnished to the defendants. The defendants claimed that, on December 29, 1893, they paid to the plaintiff Cameron the sum of $256 in full of the demand. The defendant Jacob Leonard, his son Jesse and two young women, the stenographers in his office, all testified that the plaintiff Cameron received such sum of $256 in full satisfaction of the claim. But the evidence was very satisfactory that the actual amount then due to the plaintiffs was $598.71, and the referee was not able to credit the statement that the plaintiff Cameron then accepted $256 in full payment of that amount and went away satisfied. On an appeal, this court refused to disturb the finding of the referee.
Thereupon, the defendants moved at Special Term for a new trial on the ground of newly-discovered evidence, and procured the order from which this appeal is taken.
That order is granted upon the affidavit of one Madline, that he happened into the defendants' office on December 29, 1893, when the $256 was paid, and heard the plaintiff Cameron say that he would take that amount in settlement of the account.
The case presented, therefore, is that, upon the new trial, there would be five instead of four witnesses against the plaintiffs upon the question whether they accepted the $256 in full payment of their claim. This additional witness adds little or no strength to the defendants' claim. It does not make their story any more reasonable. It does not at all explain why the plaintiffs would be willing to accept $256 for a plain claim of $598.71; or why, if defendants had procured such a favorable settlement, they did not take a receipt for the same, or, at least, express in the draft then given that it was in full of all demands. It does not explain away any of the several features about the transaction, as narrated by defendants, which tend to discredit their story. It merely adds one more witness to an alleged fact already sworn to by four. Moreover, it appears from the opposing affidavits that when the witness Madline was confronted by the plaintiff Cameron, after he had made the affidavit in question, he did not recognize him, and then stated that the man he saw at defendants' office was an older man. It also appears from the affidavits of four persons, used upon this motion at the Special Term, that this man Madline is a drunken and worthless vagabond, and that they would not believe him under oath. I am entirely satisfied that the evidence of this witness would not, and should not, change the conclusion which the referee reached upon the trial of the case. Such evidence is neither of the character nor cogency requisite to sustain an order granting a new trial. ( Roberts v. Johnstown Bank, 14 N.Y. Supp. 432; O'Harra v. N.Y. Central H.R.R.R. Co., 92 Hun, 56.)
The order, therefore, should be reversed, with ten dollars costs and disbursements.
All concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.