No question of law is involved in this order, and it is not appealable to this court. An order granting a new trial on the ground of newly discovered evidence, surprise, misconduct of jurors, or the like, has always been considered *Page 44 as addressed to the discretion of the court. (Selden v. TheDel. Hud. Canal Co., 29 N.Y. 634; Young v. Davis, 30 id. 134; Sherman v. Felt, 2 Comst. 186. See also King v.Platt, 37 N.Y. 34, How. Pr. 26, where all the cases are examined.) In such cases, this court never attempts to review the action of the courts below.
In Burk v. Adams, (2 Abb. N.S. 104), the question was discussed but no conclusion was reached by the court, and the later case of King v. Platt gives the true rule which should govern the decision. It is discretionary in its nature, and not the subject of appeal to this court.
If in our power to review the discretionary action of the court below, we should not have felt disposed to exercise that power in the present case. In the first place we have not the facts on both sides before us. The defendant has presented his affidavits, but the "opposing affidavits," which were before the court below, are not among the papers. We are entirely ignorant of their contents. In the next place, the evidence is cumulative in its character. The witness, Barnum, swore to one state of facts, and the defendant, as a witness, swore to another and different state of facts. The facts now desired to be proven by Mrs. Barnum to sustain the defendant and to impeach her husband, are upon the same point, of the same general nature, and come in aid of the testimony given by the defendant. They are intended to show that the note in suit belonged to her husband as was insisted by the defendant, and not to her, as was insisted by the plaintiff. They were well known to the wife at the time of the trial, and known to the defendant to be known by her. He then suffered her to be in the interest of the plaintiff and to have the same purpose with her husband, and that she would sustain his testimony. He therefore omitted to call her. He now ascertains that she will give evidence to sustain his view of the case, and he therefore asks for a new trial on the ground of newly discovered evidence. This will not do. No verdict could stand if this should be held a good cause for opening it. (People v. Superior Court, 10 Wend. 285; Peck v. Hiler, 30 Barb. 655.) *Page 45
And, lastly, the delay of more than a year after the report, in making the application, is too great. (Same authorities.)
The judgment and the order appealed from should be affirmed with costs.
All affirm.
Appeal from order dismissed. *Page 46