The court below granted a new trial of this action upon the ground that one of the witnesses called by the plaintiff in rebuttal testified falsely. His testimony was contradicted by other witnesses upon the trial and the questions of fact were submitted to the jury. The court on a motion for a new trial, upon the affidavits of several persons which tended to show that the evidence of this witness.called *302by the plaintiff was false, granted a new trial. I know of no principle upon which such an order can be sustained. When the issues in such an action are tried by a jury their verdict should, I. think, be finalyand if they may be retried upon affidavit by the Special Term it seems to me that it would be better to have the case originally tried upon affidavits, rather, than to go through the useless formality of submitting the question to a jury.
I think, the order should be reversed.
Van Brunt, P. J., concurred.
Order affirmed, with costs.