The order here appealed from should be affirmed. The alleged newly-discovered evidence is not such. It could have been presented at the trial or the fact that the alleged payments were made established, and if such evidence had been presented it could not have changed the result. The city paid Waring without any authority whatever. Besides, the city is fully protected under Matter of Cunningham (175 App. Div. 791), decided herewith.
Present — Clarke, P. J., McLaughlin, Laughlin, Dowling and Davis, JJ.
Order affirmed, with ten dollars costs and disbursements.