One of the substantial issues tried was the extent of the damages to which the plaintiff was entitled. The defendant *813moved for a new trial on the ground of newly-discovered evidence. It appeared that plaintiff, after the accident, made an application to an insurance company for insurance, in which she stated that she was in good physicial condition, and had sustained no injury, and had not been confined to the house by illness; and also had been examined by the Life Extension Institute. This evidence is material upon the subject of the extent of the injuries, and if credited by the jury would probably influence the amount of the verdict if they should find for the plaintiff. The defendant cannot be charged with negligence on account of its failure to discover this evidence under the circumstances. Therefore, all requirements for an order granting a new trial on the ground of newly-discovered evidence are met in this case. It is true that the evidence presented on the motion is hearsay. But it appears that the court denied (erroneously, we think) a motion for a reference to take this evidence for the purpose of presentation upon the motion. For that reason we consider the affidavit which states the sources of the information and the ground of belief sufficient.
The order denying the motion for a new trial on the ground of newly-discovered evidence should be reversed, and the motion granted, upon condition that defendant pay to plaintiff, within ten days after entry of the order, the costs of the action, including the costs of this appeal. If such payment is not made, the motion should be denied, with ten dollars costs.
Blackmab, P. J., Mills, Rich, Putnam and Kelly, JJ., concur.
The order denying the motion for a new trial on the ground of newly-discovered evidence is reversed, and the motion granted, upon condition that defendant pay to plaintiff, within ten days after entry of the order, the costs of the action, including the costs of this appeal. If such payment is not made, the motion is denied, with ten dollars costs.