I am unable to subscribe to the conclusion reached by my associates,” and I. desire to record my dissent therefrom. Accepting the recognized legal postulate, that, new trials may be granted for newly- discovered evidence, I hold they are to be granted with caution, and that a strong case must be made to persuade a court to exercise its discretion in that regard. If judgments can be swept aside upon such a state of facts as the moving papers disclose, their finality is not only of doubtful validity, but their very integrity is threatened; and any judgment, after a considerable lapse of time, may be nullified despite the consequences which may result therefrom. Moreover, if the character of the proof submitted on this motion is to be deemed sufficient, it must fairly and logically be accepted in other cases; and we are thereby establishing not alone a new rule, but a dangerous precedent. We may not depart from the well established rules applicable to like motions, and we should, therefore, be slow in affirming an order that has in it such little merit as the one in hand.
The judgment in this case was rendered in February, 1905, after a fair trial. In May, 1905, it was affirmed by this court; and subsequently, and on the 19th day of November, 1906, it was affirmed by the United States Supreme Court to which it was carried by respondent. 203 U. S. Sup. Ct. *522Rep. 584. On December 28, 1906, nearly two years after its entry, the order appealed from was made, setting aside the judgment and granting a new trial. To support such an order it was necessary to present proof that would not only appeal to the conscience of the court, but at the. same time carry with it the strongest conviction that injustice was done. And so, too, the record must fairly disclose facts which would lead to the conclusion that upon a new trial a different determination is reasonably certain. This, I repeat, was requisite before the court could be moved to set aside a solemn determination in favor of one of the parties to the judgment. A critical examination of the affidavits fails to disclose any of these things. With one exception they are all hearsay. All are barren of probative force; and, when compared with the record of the trial, there is not produced a circumstance strong enough to justify us in disturbing the judgment.
A brief history of what occurred on the trial and a reference to the complaint and the issue are necessary in order to determine the effect of the moving affidavits. And, first, as to the nature of the action. It was brought to recover $750 rent, claimed to be due for the month of January, 1905. It was alleged in the complaint on positive knowledge as follows: “ That on or about the first day of May, 1902, plaintiff and defendant entered into a lease in writing whereby plaintiff leased and demised to ” the defendant the premises therein referred to at a yearly rental of $9,000, payable in equal monthly payments in advance. In paragraph TV it was further alleged, “ upon information and belief, that, on or about the first day of May, 1902, the defendant entered into possession and enjoyment of the premises' demised in said lease.” This complaint was verified by J. Crawford McCreery, the president of the plaintiff, on January 4, 1905. The answer admitted the execution of the lease on said day and the amount due, but denied the other allegations of the complaint. As a separate defense it’ charged that the defendant was not authorized to commence business under the National Banking Act until June 2, 1902, on which day it received a certificate from the comptroller of the currency allowing it to transact business; that *523the lease was executed prior to said date and before the defendant had any corporate existence, and hence was void and of no effect. Here there was presented a well defined issue, the vital question" being the day on which the lease was executed. We start with a positive allegation in the complaint that it was executed on May 1, 1902, and with the further averment,' upon information and-belief, that the defendant entered into possession on said day. It is fair to assume that, before the complaint was verified by plaintiff’s president, he was fully informed both with regard to the fact of the execution of the lease and the time possession was taken, for he expressly so declared. Referring now to the stenographer’s minutes upon the trial, which are printed in the record, we find that the only question litigated after the lease was admitted in evidence was the date of its execution and delivery; and this was regarded as the crucial point by the trial justice in determining the case. Mr. McOreery, the president of the plaintiff, testified that, in 1902, he was the vice president of the company; that the lease was delivered to him on June nineteenth; and, on cross-examination, the following questions were asked and answers given: “ Q. And that lease went into effect on May 1st? A. We were paid for May and we were paid for June. Q. 1902 ? A. Yes.” The plaintiff here rested its case and the motion was then made to dismiss the complaint upon the ground, among others, that, the lease having been executed prior to June 2, 1902, it was void, and no recovery could be had under it. The court expressed a desire for additional proof as to the delivery of the lease, and thereupon the defendant called John W. Wooten, who testified that he was the attorney for the defendant in May and June, 1902; that he was present when the lease was executed; that it was executed at the time of the first meeting of the board of directors at the bank. “ Q. That was May 27,1902 ? A. I don’t recollect the date. Q. Do you mean at the meeting at which the officers of the bank were elected ? A. Were elected. Q. You attended that meeting? A. Yes. Q. Those are the official minutes of the bank? Plaintiff’s counsel: As I understand, this is only to refresh the witness. The Court: That is all. Q. The *524first minutes previous to those I show you were the stockholders’ minutes. Those were the meetings of the directors in which Van Cott was elected president and Carraway secretary? A. May 2nd, 1902. Q. Were you present when the lease was executed ? A. I was. Q. And what did you do with it, if anything, after it was executed ? A. According to my'recollections the lease was on that day delivered to the McCreery Realty, on that day. Q. By you ? A. To Mr. Easter representing the company.” The witness then declared that he recollected that the acknowledgment was taken by Van Cott and Carraway some weeks after the lease was delivered and executed. On cross-examination he stated that when he handed the paper to Mr. Easter he said, “ There is the lease duly executed;” that he did not know at the time that the lease was not acknowledged hut he knew that it was duly signed and sealed'; that he had both leases; that Easter took one and he took one; that he handed-it to Carraway, the cashier of the hank. “ Q. Did you see it after-wards ? A. Mr. Carraway presented it to me one day and said that Mr. Easter had been in and that the paper was not acknowledged, and that the company would not accept it until it was properly acknowledged. Q. Do you know when that was? A. I remember it was some time after the delivery. Q. Did you see it after that ? A. Ho.”
Mr. Charles A. Hess, one of defendant’s counsel, testified that he assisted in organizing the defendant bank; that he first saw the lease, plaintiff’s exhibit A, about May 19, 1902; that he was present when it was executed; that certain insertions were in his and Wooten’s handwriting; that the lease was signed May twenty-seventh, immediately after Mr. Van Cott and one Carraway were elected president and treasurer, respectively; that he was chairman of the meeting; that the lease had been knocking around for several days; that plaintiff was anxious to have it executed and after it was executed it was given to Mr. Wooten for delivery to the plaintiff. The witness several times declared that it was executed and delivered on May twenty-seventh; that Mr. Easter, representing plaintiff, several times called, with a view to having the lease acknowledged; that it was acknowl*525edged on June nineteenth, and returned by him to Mr. Easter, the latter being in court at the time and identified by the witness.
Here the defendant rested, and renewed its motion to dismiss the complaint. ' Plaintiff’s counsel in opposing the motion offered to show by plaintiff’s president that he declined to accept the lease and sent it back because it was not properly executed; and this request to permit additional evidence to be offered was allowed by the court. Whereupon Mr. McCreery was recalled and he again said: “ I testified the lease sued on was delivered to me on the 19th or 20th of June, 1902,” and again, “ I received the lease supposed to be properly executed on June 19th.” On cross-examination there was produced a duplicate of the lease which plaintiff held, and he was questioned as follows in regard to it: “ Q. You mean you had the physical custody of that lease? A. Yes, of that paper, physical custody. Q. From the 27th of May until June 19th ? A. I cannot say exactly from May" 27th, but I presume I had it during that time. Q. You got it some time in May ? A. Yes. Q. And you kept it until about the time it was acknowledged, June 19th? A. Yes. Q. That was the only copy you had? A. Yes. Q. That bears date when ? A." That is the acknowledgment. Q. I ask you the date? A. June 27th it was acknowledged before a notary public.”
At this point the attention of the witness was directed to the discrepancy between the lease (plaintiff’s exhibit A) produced by the defendant and the one produced by the witness (defendant’s exhibit 2) and the following questions were asked: “ Q. I now show you the copy which your lawyer handed to me and you notice that it is signed Andrew B. McCreery and appears to have been sworn to before Thomas W. Folsom, notary public, and the date appears to be the 27th of June, 1902? A. Yes. Q. And that the word ‘ June ’ is written over the word ‘ May ’ 1902. A. Yes. Q. How can you refresh your recollection by looking at that acknowledgment, that date, May or June 27th, 1902, whatever it is, and tell us from that date the exact date when you received that lease ? A. My memory has been *526refreshed in respect to the date on which I had the lease delivered to me from the Equitable Bank and that- was on the 19th day of June. Q. That was the second delivery? A. The delivery of the paper evidently properly executed was on June 19th.” Asked again to reconcile the difference in the dates of acknowledgment the witness said: “ I took note of the time when I received the delivery of the lease from the bank, by making an entry in one of my private memorandum books belonging to plaintiff.” The book was not produced by him because he supposed his testimony under oath would substantiate the date. Then he declared that he did' not personally speak to his attorney about the entry in the book. In the next breath he admitted that he spoke to him “ within the last four months ” and finally said he spoke to him about it within the past week; that his attorney did not request him "to produce the book; that he inspected it within the last three days. “ The Court: But independent of that, have you any recollection of that date of the delivery of this executed lease? A. Probably I-would not have the precise date; it is several years ago, and I' have a great many papers pass through my hands. Q. When did you sign it? A. I presume that paper was signed in June or Hay; I don’t know what date.”
From the testimony given at the trial it is readily seen that the sole issue sharply contested was the date of the execution and delivery of the lease. This issue was submitted to the court by a request of each of the parties for a direction of a verdict. The court held upon all the evidence that the lease was executed and delivered on Hay 27, 1902, and rendered judgment for the defendant, which, as we have seen, was affirmed both by this court and the Supreme Court of the United States. That the lease was executed and delivered on Hay 27, 1902, is to my mind clearly established. The fact that the acknowledgment was subsequently added, neither affected the execution nor delivery of the instrument. There is no law in this State requiring a léase to be acknowledged; and, under the recording acts, the sole purpose is to give notice to subsequent purchasers.
Acknowledgments are frequently made after delivery as *527a matter of convenience, but it is not to be claimed on that account that the date of the acknowledgment is at all to control where it varies from the date of the instrument. People v. Snyder, 41 N. Y. 397—402; Biglow v. Biglow, 39 App. Div. 103.
A strong point in the case is found in the lease which the defendant succeeded in having plaintiff produce. A photographic copy of the acknowledgment thereon is printed in the record; and it is glaringly apparent, upon a mere inspection, that the word “ June ” is written over the word “May,” and that the form of acknowledgment bore the original date of May twenty-seventh. Both of the witnesses Wooten and Hess testified that the lease was executed and delivered on that day, and here is a circumstance corroborative of their story.
Plaintiff’s counsel was apparently entirely satisfied with what was developed upon the trial. Mr. Easter, connected with the plaintiff, was in court and was identified by Mr. Hess; but he was not called to contradict either the evidence of that witness or of Mr. Wooten on the point of the return of the lease to him (Easter) on June nineteenth, long after its original delivery. Mr. Easter, if called, could either have admitted the truth of what Messrs. Wooten and Hess declared or challenged their evidence by a denial. Here was an accessible • witness, connected with the plaintiff, actually in court upon the trial, and yet not permitted to testify.
It is familiar law that the failure to call such a witness raises a presumption that his testimony would have been unfavorable if called. At least, the omission to place him on the stand is a strong circumstance to be considered in the ease.
Next, an important memorandum book referred to in the moving papers, and claimed to have been, several times" before the trial, mentioned to plaintiff’s attorney, was not produced though in the custody of plaintiff’s president. If such a book containing such entry existed, it should have been produced for the purpose of refreshing the memory of the witness on the most important point in the case; and this is especially so, as the witness, in answer to a question *528by the court, said that, independent of the entry, he could not give the precise date. “An original entry or a memorandum made by a witness at'the time of a transaction, is admissible in evidence as auxiliary to his testimony, only when without its aid he is unable to distinctly recollect the fact to which it relates.” People v. McLaughlin; 150 N. Y. 365—392. It is difficult to conceive why the date of the receipt of a lease should be entered by the president of a corporation in a private book of the company, but with that act we.are not concerned, except in so far as it bears on the merits of the case.
Six days after the trial, plaintiff's counsel moved to amend the complaint to conform to the proof as of date June 19, 1902, which motion was granted; but the date of the execution and delivery of the lease was nevertheless decided by the court to be May 27, 1902.
So that, summarizing the result of the trial, we find plaintiff’s president swearing to. one date in the complaint and to. other dates on the trial, all for the purpose of fixing liability on the defendant under the lease, and to overcome the defense that the lease was unenforceable against it. It is clear to me that plaintiff was well aware of the fact that it was to meet the very issue which was contested, and that it knowingly went to trial upon that issue, omitting to call not only Mr. Easter but one James S. O’Neale, the assistant cashier of the defendant, who was apparently well known to Mr. Easter, and whose evidence, as appears from his affidavit read in opposition to the motion, could, by the exercise of the slightest diligence, have been procured at the trial. Mr. O’Neale made an affidavit for both parties. . The one made on behalf of appellant shows his residence in this city for some years past, while the one made for respondent and relied on upon the motion, purports to disclose evidence discovered since the trial and bearing on the date of the execution of the lease.
It remains now to examine the affidavits on which the motion for a new trial is founded. These, as already stated, are with one exception mere hearsay. They are not only *529devoid of proof, and entirely worthless for that reason, but their shallowness appears on a mere inspection of them.
Six affidavits were read in support of the motion. Two were made by the president and treasurer of the plaintiff respectively; one by its attorney, Mr." Kremer; another by a Mr. O’Neale, to whom we have already referred, and the other two by Wooten and one Gandy. The affidavit of Mr. Kremer is important only in the following particulars. He avers that after the amended answer was served he made diligent inquiry to ascertain when the lease was executed; that he was then informed that June nineteenth was the actual date of delivery; that for that purpose he examined plaintiff’s officers and Hr. Easter, one of its employees, and learned that the date of delivery as appears from its records was June nineteenth; that prior to the trial he had, an interview with the former attorney of the plaintiff and ascertained that upon the trial the defendant intended to rely upon the date of the lease. The remainder of his affidavit is devoted to matters particularly mentioned in the affidavit of Mr. Gandy. Here we have an express admission of counsel as to what he did and learned before the trial. Mr.Easter, who is now conceded to have possessed knowledge, was in court at the time, but as shown was not called as a witness. The affidavit of plaintiff’s president states: “ that when he heard the testimony given at the trial by the defendant’s attorney to the effect that the lease was actually signed on Hay 27th, 1902, he was unable to contradict the same or to" form any opinion as to whether it was signed on said day or prior or subsequent thereto and that the first information he ever had as to its being signed on a different date was from his attorney, after the 17th day of September, 1906,” nineteen months after the trial. This is the same witness who at the trial testified to having made an entry of the date of the delivery of the lease in the private memorandum book of the plaintiff and who verified the complaint, alleging of his own knowledge that it was executed on or about May 1, 1902. The affidavit of plaintiff’s treasurer shows that he has no recollection of the date of the delivery of the lease, and he further deposes that Andrew B. Mo*530Creery, the secretary of the plaintiff who is absent in Europe, informed him, affiant, that he had no recollection whatever concerning the lease or the date of its delivery. The affidavit of Mr. Wooten requires little comment. He states in effect that the lease was executed and delivered after June 2, 1902, and not before; “ that he did not intend upon the trial to give any testimony contrary to or inconsistent with the facts as stated, and that, if his.testimony given upon said trial is contrary to or' inconsistent with the facts as above stated, then such testimony was given under a misapprehension.” He does not explain what the misapprehension was that led to his testimony as given by him upon the trial. He was called for one purpose and that was to prove the date of the execution and delivery of the lease. Nor does he state how long after June second, or when, he now claims the instrument was executed and delivered. As the attorney for the defendant and occupying to it a relation of trust and confidence, it is fair to assume that he was possessed of knowledge, on the subject about which he testified; and it is also fair to assume that his recollection in February, 1905, of the- particular event was quite as clear as it was in October, 1906, when - he made his present affidavit.
Plaintiff asks that this witness he now permitted to change his evidence from the former trial to meet the particular date which has been so many times mentioned. To permit this to he done in view of existing circumstances is to invite perjury. If a new trial can he granted because a witness for the prevailing party has decided to come to the aid of a defeated party by claiming that his evidence theretofore given was so given under a misapprehension of the facts, we are approaching a perilous stage in judicial procedure. Not a single fact is stated that can carry with it conviction. He declares, further, that he handed the document to Easter after June second; and the reason he gives for remembering the fact now is, because Easter - frequently urged him to execute the lease. The final paragraph of Mr. Wooten’s affidavit is interesting and is as follows: “ Deponent further avers that said lease was not executed on the 27th day of May, 1902, because deponent verily believes that the name *531‘Equitable National Bank’ was not authorized by the Comptroller of the Currency until June 1, 1902; that deponent will testify to the facts as above stated upon a new trial of this action.” The facility shown by Hr.,Wooten to swear to various events is quite alarming. Upon a new trial he indicates a readiness to testify, among other things, that the'bank was authorized to transact business on June first, when the comptroller’s certificate annexed to the record shows positively that the authority was not given until June 2, 1902.
Next, we have the affidavit of Hr. O’Neale to the effect that he was assistant cashier of the defendant; that after the defendant commenced business Hr. Easter several times inquired of him whether the lease had been signed; that on each of said occasions he mentioned the fact to Carraway who stated to the affiant that the reason he delayed the matter was because he desired to secure the account of the plaintiff; that when Hr, Easter called the bank was conducting its business. This affidavit also discloses the fact that Hr. Easter possessed sufficient knowledge at the time of the trial to have rendered it important to call him.
Lastly, we have the affidavit of Mr. Gandy. It is this affidavit upon which plaintiff stakes its all for a new trial. But, if one reads it, the first question that suggests itself is, “ Who is Gandy; how does he appear in the case, and who discovered him ?” His appearance is wholly unaccounted for except upon the theory of a mere inspiration. He seems to be unknown to any one connected with the plaintiff or its attorney, and the defendant disclaims all knowledge of him. A quotation from his affidavit will best illustrate an anomalous situation. He asserts that he has known Carraway for four years and that, at the time of the trial, Carraway was in the State ,of Mississippi. Then he says: “In June or July, 1905, I had a conversation with said Carraway, in which the facts in the above entitled case were discussed, and in the .course of which said Carraway stated to me that the lease mentioned in the complaint herein of the premises occupied by the defendant bank, on Broadway near Eleventh street, was signed by O. Van Cott, then president, and by *532said Carraway as cashier, after June 2nd, 1902, and not "before.” What, called forth this conversation is not given. Why the affiant interested himself in this matter does not appear. Without rhyme or reason a conversation was had in which it is claimed an important admission was obtained. Eow see what follows: "In July, 1906, he saw Carraway again and was informed by him that one Cunningham' the day before had expressed the desire for an interview with him, but the privilege was denied because he (Carraway) “ feared that he might he served with a subpoena to appear as á witness upon some proceeding connected with this action, and that he did not desire to give testimony, inasmuch as his testimony would be adverse to the defendant and hence adverse to his own interests as a stockholder of the defendant.” The affiant failed to state in what proceeding Carraway could have been called by a subpoena, and it nowhere appears that any was pending. If this is regarded as a credible statement, or even if it can be considered as a sufficient story to move the .court to aid a lost cause, there is indeed hope for future defeated litigants. It served of course as a means to an end. It was apparently hoped'that its plausibility would give effectiveness to all that was contained in the affidavit of Mr. Gandy, and it was a mere introduction of what was to follow. What does follow is to the effect that Carraway admitted to affiant that the lease was executed after June 2, 1902. The affidavit then recites that, on September 1, 1906, for the first time, the facts were related by affiant to plaintiff’s attorney and the latter suggested that an affidavit be obtained from Carraway. Thereupon letters and telegrams are alleged to have passed between the affiant and Carraway. The first letter, dated September tenth, being as follows:
“ Ton can say I will give them by deposition so they can open the case, and that same will be substantiated by another witness who knew that the lease was not signed-until after the bank had been running for several weeks. I am getting very busy and would rather not leave here just now.”' Who the other witness is, and his name and address, are mysteriously withheld. Then it appears that, on September 17, *5331906, a telegram was received by the affiant, and to use his own words: “Which telegram is signed i John Carraway’” and reads as follows: “ I signed my name to lease McCreery to Equitable Bank after June 2nd, 1902, and will make affidavit to that effect.” The affidavit next says that, “ since September 17th, however, said Carraway has refused to furnish an affidavit for use upon the motion herein, for the reason that he is unwilling to volunteer testimony in this case adverse to his own interest as a stockholder of the defendant and the interests of his friends similarly situated.” Then follows this somewhat remarkable statement: “ I am entirely confident, from my knowledge of said Carraway’s personal character and from my conversations and correspondence with him, that, if his attendance upon the trial should be compelled by subpoena, or his testimony taken under commission for that purpose, he would testify to the facts as hereinabove stated. Said Carraway is engaged in business in Biloxi in the State of Mississippi where he resides with his family, and I am and have at all times been cognizant of his whereabouts and therefore believe that, if his personal presence at the trial of this action cannot be obtained, the plaintiff can readily obtain his testimony in the State of Mississippi by means of a commission issued for that purpose.” It is self-evident that Mr. Carraway’s presence in Mississippi will make it quite difficult to procure his attendance by subpoena upon the trial. Ror is the belief of affiant that the evidence can be obtained by commission justified by his narrative. Rowhere is it stated what the testimony of the new witness will be, except as may be inferred from an alleged conversation. The reason given by Mr. Carraway for his refusal to furnish affidavit to plaintiff, lacks candor to say the least; for it is claimed that he has voluntarily offered to testify either upon the trial or hy commission, yet he expressed reluctance to sacrifice himself and friends by affidavit. There is nothing in Mr. Candy’s affidavit that justifies either judicial notice or action. Ror am I able to discover how it is possible to torture anything deposed to by him into newly discovered evidence within the meaning of the authorities. There is nothing to show that *534Mr. Carraway will either appear on the trial or give his evidence upon commission. If he was honest in his reason for refusing his affidavit, it is fair to assume that he will he quite as unwilling to give evidence upon a new trial-adverse- to himself and friends.
The affidavit of Mr. Hess in opposition contains matters to which some reference must he made. From it the fact appears that the lease was executed and delivered on May twenty-seventh and the reasons given by him carry with them conviction of truth. From it, too, there is shown that, in January, 1905, a month before the retrial of this action, Carraway was indicted by a United States grand jury for a violation of the banking laws in having certified certain checks in violation of law; that, shortly thereafter, said Carraway was arrested in Biloxi and gave bond for his appearance; that, in March, 1906, he entered a plea of guilty and, at the request of the officers of the defendant and of Mr. Hess, Mr. Justice Thomas suspended sentence. It is argued by respondent that the sentence was suspended because over-certification of checks was a matter of common occurrence among cashiers. I can find nothing in the record to justify such conclusion. It may as well be inferred that sentence was suspended because Carraway was deemed an important witness for the government on the trial of O’Heale who, as I will presently show, was also indicted for offenses against the banking law. That Congress did not consider over-certification a trivial offense is quite evident from the maximum punishment which may be inflicted, namely, imprisonment for five years and a fine of five thousand dollars. Act of July 12, 1882, § 13, amending U. S. R. S., § 5208.
Mr. O’Neale, above referred to, is the other affiant and he was indicted by the United States grand jury for making a false report ,to the comptroller of the currency, which indictment is still pending and upon which he is awaiting trial. Mr. Wooten, since the trial of .this action, was indicted for ¿ felony and is now serving a sentence in State’s prison. Hone of these facts are denied. Ought we not to consider the reputation of these witnesses on the present application ? It seems to me that we should. In the case of Hagen v. *535N. Y. C. & H. R. R. R. Co., 100 App. Div. 218-222, the identical question was passed upon on a similar application. One of the new witnesses was twice convicted for an assault and once for disorderly conduct, and another witness was convicted of public intoxication. Upon the affidavits of these two witnesses a motion for a new trial was made, and Judge Spring said: “ The suggestion is a cogent one that witnesses of this kind would not aid the plaintiff in securing a different verdict from the one last rendered. The fact that the application is founded upon the affidavits of men of unsavory reputation casts suspicion upon it and induces the belief that it is without real merit.” Here the three witnesses upon whom plaintiff solely relies to obtain, a new trial are not only charged with crime, but one is actually confined in a penal institution, another was convicted, and the third is under indictment. We should be slow in accepting the statements of such witnesses, even though no other reason existed for denying this application.
The affidavit of Mr. Miskimon, read in opposition to the motion, to the effect that plaintiff opened an account with the defendant on the 5th day of August, 1902, by depositing the sum of $2,234.10, challenges the probable truth of the statement alleged to have been made to Gandy by Carraway that the reason why he (Carraway) remembers that the lease was executed after June 2, 1902, was because he deferred that matter until he could procure such account, and no one claims that the lease was delivered as late as August, 1902. Finally, the replying affidavit of Mr. Easter, wherein he states that, although he attended the trial and was asked at the time by Mr. Kremer, the counsel for the plaintiff, what he knew about the delivery of the lease, and that he “ tried to recollect and was unable to recall any of the circumstances testified to by the witnesses on the trial, and was unable to contradict or confirm any of their statements ” requires no further comment than to say that, after talking with Gandy and O’Eeale, he has so far refreshed his memory that he is now willing to swear positively “ that the lease was not handed to him on May 27th, 1902, or on any day prior to June 2nd. 1902,”
*536New trials have been granted where it was made to appear that perjury was committed by witnesses on the side that has prevailed. But I know of no reason why a new trial should be granted for newly discovered evidence in order to permit one of the witnesses to change his evidence and to give to the others an opportunity to corroborate him. A new light has suddenly been revealed to them and all are now eager to sacrifice themselves in behalf of plaintiff, but I am unwilling to permit them so to do at the expense of their consciences. I confidently assert that, in all the cases where new trials have been granted for subsequently discovered proof, none is to be found where a state of facts exists parallel to the present one. In all the cases cited in the prevailing opinion, just grounds for- setting aside the judgments existed, but none fit this case. While the power to set aside a judgment in a proper case should at all times be exercised in furtherance of" justice, before such power is exerted a clear and convincing case should be made so that it can be seen that a wrong has been done. This is not the case here. -Parties are not to be deprived of the fruits of their victory, after the lapse of two years, by any such plea as is made out here; nor are judgments to be nullified for mere experimental purposes. From all the so called evidence disclosed, it is extremely doubtful that the result can be changed and, while this may be a matter for a jury, the court in the first instance is the judge- of such evidence; and it is clear to my mind that the proof sought to be introduced upon a new trial is neither certain nor probable to change the result.
Proper diligence on the part of plaintiffs counsel would have enabled him to produce at least some of the witnesses on the former trial, and his own affidavit shows that instead of using diligence there was an entire absence of it.
It was urged upon us by respondent that, upon the granting of a new trial, its right to recover $20,000 depends. The record shows that but $750 is involved; but I do not see why we should be at all influenced by any consideration in respect to future accruing rent, especially where plaintiff *537has had its day in court and, after a fair trial in which full justice was done, was defeated upon every point litigated,
A more serious question is raised by appellant; and 'it is contended by it that, while the City Court is fully invested with discretionary power to grant a new trial in a proper case for newly discovered evidence, it could not, under the „case of Ex parte Fuller, 182 U. S. Sup. Ct. Rep. 562, and kindred cases,, set aside the judgment in this case, after it was affirmed by the Supreme Court of the United States, unless there is found in this State an express statute which confers such right. Without conceding that there is such a statute, I do not deem it necessary to pass upon the question, in view of the conclusion reached by me that the affidavits upon which the motion is predicated are wholly insufficient.
The principle involved in this appeal is deemed by me of sufficient importance to require its submission to the Appellate Division, and leave should be granted to appellant to appeal thereto.
The order should be reversed, with costs and disbursements.
Order affirmed, with costs and disbursements.