The action was brought to recover damages for personal injuries sustained by a boy nine years of age, in an accident occurring March 10,1896, upon defendant’s street railroad. The boy *942had some wounds about the head, and a fracture of the right femur, about the middle of the leg. He was taken to the hospital immediately after the accident occurred, and remained there until April 30, 1896, about seven weeks, and was then taken home, and remained there until the trial, and afterwards. The wounds about his head had healed when he left the hospital, and his leg had mended so that he was able to use it in walking, but it was somewhat shorter than the other leg. The trial took place June 12 and 15, 1896, and resulted in a verdict for $8,500.
We are unwilling to grant a new trial upon the ground that the witnesses who testified for the plaintiff upon the trial as to the nature of the accident were unreliable. The authorities are uniform and consistent to the effect that a new trial will not be granted to enable the defeated party to impeach the witnesses of his adversary. People v. McGuire, 2 Hun, 269, affirmed 60 N. Y. 640; Sims v. Sims, 12 Hun, 231; Michel v. Colegrove (Super. N. Y.) 19 N. Y. Supp. 716; Schults v. Railroad Co., 47 N. Y. Super. Ct. 285; Holts v. Schmidt, 44 N. Y. Super. Ct. 327; Duryee v. Dennison, 5 Johns. 248. The appellant’s counsel appears to concede this general rule, and says that this is not such a case, but one where it appears the verdict has absolutely no trustworthy evidence on which to rest. This seems to ignore the reason of the rule. We think, however, that the defendant makes out a clear case for a new trial, for the reason that there was a fictitious and fraudulent display before the jury of the boy’s alleged infirmities, which could hardly have failed to improperly influence the jury. The papers used upon the motion leave no doubt in our minds that the boy was able to, and did, walk readily, without the use of crutches, both before and after the trial, and that the manner in which he was conducted through the court room to and from the witness stand, as described in the papers, was wholly and entirely unnecessary, as a matter of fact, and was gotten up solely for effect upon the jury. It was a dishonest display, and a fraud and imposition upon the court and the jury. It was a false representation to the jury that over three months after the accident, and about a month and a half after his discharge from the hospital, the plaintiff not only was still compelled to use his crutches, but required, in addition, to be greatly aided. Of course, it influenced the jury, and very materially, for a very weighty and perfectly proper consideration with them was the actual effect upon the plaintiff of the injuries which he had sustained. On the ground of fraud practiced upon the court and jury during the trial, the judgment should be set aside, and a new trial granted.
It was said in Ward v. Town of Southfield, 102 N. Y. 287, 6 N. E. 660, by Earl, J.:
“A party defeated in a litigation may appeal from the judgment, or move for a new trial, and, in a proper ease, to vacate and set aside the judgment. These remedies are generally ample to protect all parties. But where there is fraud, not in the subject of the litigation, not in anything which was involved in the issues tried, but fraud practiced upon a party, or upon the court during the trial, or in prosecuting the action, or in obtaining the judgment, then, in a proper case, the judgment may be attached collaterally, and on account thereof set aside and vacated.”
*943This is a case of “fraud practiced upon a party during the trial”; and, if it is ground for a collateral attack, it is certainly ground for setting aside the judgment in the same action, as the Ward Case plainly indicates. That case was cited and applied to the case of a motion in the same action, in Harris v. Ditson, 13 N. Y. St. Rep. 337, a case decided by the general term in this department. “Misconduct” (which may or may not be fraudulent) is as well recognized a ground for the granting of new trials as either surprise or newly-discovered evidence. It is treated of as such, at great length, in the American & English Encyclopedia of Law. In Meyer v. Fiegel, 38 How. Prac. 424, 425, it is said that a new trial should be granted “if the successful party, or any officer of the court, or the jury, have been guilty of gross misconduct.”
This case is somewhat similar in principle (though much stronger for the defendant) to Cole v. Coal Co. (Sup.) 16 N. Y. Supp. 789. There a new trial was granted because the plaintiff exhibited, after the trial, a more vigorous state of health than the evidence in his favor would have rendered possible. The court set aside the judgment, and said:
“If the injuries sustained by the plaintiff were not permanent, if, in fact, he has substantially recovered his health, the verdict was excessive in amount, and justice demands that the defendant should be allowed to present to another jury newly-discovered evidence, with a view to, at least, lessening the damages.”
The rule laid down was stated by Rumsey, J., in Brooks v. Railway Co. (Sup.) 31 N. Y. Supp. 179,184, to be “essential for the administration of justice, not only in negligence, but in all other cases.” The newly-discovered evidence of which the case speaks was simply the too rapid return to health of the plaintiff; and the decision seems to have been placed upon the ground of injustice,—a practical overpayment by the defendant. This feature is presented in the case at bar to a like degree. If, on the other hand, the Cole Case be taken as deciding that the plaintiff’s return to health indicated fraud or misconduct at the trial, in the presentation to the jury of the question of the extent of his injuries, then we have in the present case much stronger and more direct evidence of such fraud and misconduct.
For all the reasons herein stated, we think the order appealed from should be reversed, with costs in this court to appellant, and a new trial granted, the costs of the former trial to abide the event.
BARRETT, RUMSEY, and O’BRIEN, JJ., concur.