The defendant had entered into a contract with the department of public works, under which he had assumed the work of grading a certain street within sixty days from the time when he should be ordered by the department to commence the labor, the right being reserved by the municipality to order suspensions of the work from time to time, as it should see fit, and the period of the suspensions to be excluded from the computation of time for defendant’s performance.
The plaintiffs, engaged in the general business of excavating, found it desirable that they be permitted to deposit surplus material at some place within the city, and, accordingly, entered into an agreement with the defendant, whereby, in consideration of the payment to him of $150, they were given the privilege of dumping earth upon, the street which defendant was grading, the material to *140be used by him in raising the level of the street. The exact terms of this agreement, as to the time granted to the plaintiffs, were in dispute, it being claimed by the defendant that they were to be allowed only sixty days, while the plaintiffs claimed, that defendant had promised to procure extensions of his own time to an indefinite extent, by causing the work to be suspended at the order of the authorities, to the end that when the plaintiffs had occasion to dump earth they should thus have a. place for the purpose.
• However this may be, it appears that the defendant did procure a suspension of the work for some eight months, after the plaintiffs had deposited fifteen loads of earth, but the work was then peremptorily ordered to proceed by the authorities, and the defendant, after notifying plaintiffs of the necessity for haste and obtaining no satisfactory assurance that they would further avail themselves of their privilege, opened the street as a public dump. This action was brought to recover the sum of $150 paid by plaintiffs, and the justice has found for the defendant. • Upon the facts, in evidence it was quite proper for the court to find that the defendant had not undertaken to procure an indefinite number of extensions of time, and that he had not placed himself in default through his failure to obtain a further order suspending the work.- !
For the plaintiffs it is contended, however, that by the .terms of their agreement, as reduced to writing, they were to be allowed the full time which was available to the defendant under his contract-with the ■ municipality, and that inasmuch as he had opened the place to the public, as' a dump, before the expiration of that period, excluding the time when the work was suspended, he had wrongfully prevented their enjoyment of the privilege for which they had paid.'
This written agreement had apparently been mislaid at the time of the trial, and the appellants ask that it be read .as evidence upon this appeal and that a new trial be granted, as for newly-discovered evidence.
With regard to the questions of the appellants’ practice, there seems to be no statutory provision authorizing this court to grant a new trial upon newly-discovered evidence where the appeal is taken from the judgment and,- generally, evidence is to be received upon appeal only for the purpose of sustaining a judgment, never for the purpose of. reversing it. Day v. Town of New Lots, 107 N. Y. 148, 157; Munoz v. Wilson, 111 id. 295, 299.
It would seem also that the justice below would have been without *141power-to grant the motion for a new trial upon this ground, since, after judgment was rendered upon litigated issues, his jurisdiction extended only to a motion made upon the grounds specified in section 999 of the Code of Civil Procedure (Laws 1896, chap. 748), of which this ground is not one.
It may be that this court should seek authority to relieve a party thus situated in a proper case, but such a case this is not, since it does not appear that the evidence in question would have affected the result, if offered at -the trial; in fact, it is clear that it would not. Turning to the opinion delivered by the justice, we find that he conceded the plaintiffs’ right to dump earth upon this street after the work was finally ordered to proceed, but that he based his decision upon an abandonment of their privilege at that time, and there was evidence in the case amply sufficient to support his conclusion.
By the evidence alluded to, it was made to appear that the plaintiffs had so acted as to justify the defendant’s reliance upon their intention , to avail themselves no, longer of their license,- and thus his consequent act of giving a general license to the public for-the purpose, in view of the recognized necessity that the ground'be filled in, did not place him in default to the plaintiffs. His continued readiness to perform, up to the time of this abandonment, was certainly consideration for the payment by the plaintiffs sufficient to defeat their demand for its return in an action for money had and received based upon the failure of consideration, and the judgment must, accordingly, be affirmed, with costs.
Daly, P. J., and McAdam, J., concur.
Judgment affirmed, with costs..