(dissenting). I do not think this order can be reversed without violating the settled rules which have always governed the disposition of applications of this character. On the trial of the action, the defendant was represented by competent counsel, who cross-examined the witnesses produced by the plaintiff, and the question as to the credibility of their testimony was presented to, and passed upon by, the jury. The defendant asks to-have their verdict set aside, and a new trial granted, because several of the witnesses who testified in favor of the plaintiff at the trial have since made affidavits which are inconsistent with the testimony given at the trial. The fact that subsequent affidavits produced by the plaintiff, from the same persons, reaffirm the truth of the testimony which they gave upon the trial, is only important as tending to show how extremely dangerous it is to place the slightest reliance. upon statements or affidavits made under these circumstances. If such affidavits or statements are received, and a new trial granted, when the witnesses who testified for the successful party can be induced after the verdict to make inconsistent statements, no verdict- could be safe, especially where the witnesses are infants, unable to read or write, and can be induced to sign papers which they do not understand. The rules that regulate applications for- a new trial are based upon long experience, and such applications are only granted upon certain grounds which are well defined.
It has been long settled that a new trial will not be granted for the purpose of impeaching a witness whose testimony was relied upon by the successful party, and this is really the only ground upon which this application is based. There is no newly-discovered evidence, within the meaning of that term as applied to applications of this character. There was no surprise upon the trial which would justify the court in granting a new trial. The only ground is that private detectives in the employ of this railroad company have sue*948ceeded in obtaining, from certain of the witnesses who testified for the plaintiff on the trial, statements or affidavits which are to some extent inconsistent with the testimony that they gave; but upon no principle of which I am aware can such statements be the basis of a motion for a new trial.
Nor do I think the incident as to what is called “theatrical display of the condition of the plaintiff” sufficient to justify the court in granting a new trial. While it is quite probable that the action of the boy in the court room would tend to indicate a more serious condition of the leg at the time of the trial than actually existed, this was certainly nothing more than a statement by the boy to the jury that the injury which he had received was more than the defendant claimed. The boy’s mother was a witness, and described the condition of his right knee when the boy got back from the hospital. She testified that, since the boy got home from school, he had not been off his crutches, to her knowledge; that he was “nervous and weakly since the accident.” The witness was cross-examined by counsel for the defendant. There was also called for the plaintiff a physician, who testified that he had examined the boy’s leg; that he found evidence of fracture, and evidence that the right ear had been sewed up; that he had measured the boy’s legs, and found that the left leg was somewhat longer than the right,— about an inch longer. There was no evidence that the injury was permanent, or that it would have any permanent effect upon the boy in after life, except so far as this slight shortening of the leg might occasion him slight lameness. The defendant called two physicians, who testified that, after such a shortening of the leg as was here described, the shortening would not increase in after years, and that, when the boy attained maturity, the difference would not be any greater than it was at the time of the trial. Nothing appears in the case to justify assumption that the jury were asked to, or did, consider the apparent lameness of the boy in court as evidence that he would not 'entirely recover from the condition exhibited on the trial within a short time. The trial took place in less than three-months from the time of the accident, and when the boy had been but a short time from the hospital. The boy himself does not appear to have been called as a witness. The only statement in the charge of the court to the jury as to the permanency of the injury was as to this shortening of the leg. The court charged the jury that:
“It appears that he has sustained a permanent injúry, in the breaking of his thigh bone, and the shortening of his leg to some extent; an apparent shortening of half an inch, as I understand the testimony of the witnesses. Experts ón the part of the plaintiff have been called for the purpose of showing that this difference in length between the two legs will increase as the boy grows older. Experts on'the part of the defendant have been called to testify that that will not be the result. It is for you to determine, on this conflict of testimony, what the permanent injury to the boy is,—whether the injuries from which he now suffers will or will not be greater. But in no event can you find that his injuries in the future will be greater, unless you find that there is reasonable certainty of it.”
Now, all this had nothing to do with the action of the boy in court, was not based upon any evidence of the boy himself or his *949parents that the injuries were permanent, or that he would be compelled to use crutches, or unable to use his leg in the future. ‘The only evidence upon which it was claimed that the injury was permanent was that of the physician as to a difference in. the length of the two legs after the injury, which was not disputed. The jury were not instructed that they could allow for the pain and suffering of the boy, or for his present condition; and it would appear from the charge that all that was left to them upon the question of damages was to fix the compensation for the permanent injury caused by the shortening of the leg. The boy was in court, subject to the examination of the defendant’s experts, and it would appear that he was examined by a physician called by the defendant in the court room. Defendant could have had no difficulty in ascertaining the exact condition of his leg at the time; and there was no claim made on behalf of either party that there was any permanent injury, except this shortening of the leg, which has been before referred to.
Neither of the cases cited by the defendant is at all in point. In the case of Cole v. Coal Co. (Sup.) 16 N. Y. Supp. 789, the plaintiff had testified on the trial that the injuries were such as to prevent him from walking at all, and that they were of á permanent character, he producing other evidence to corroborate him; and upon that fact the defendant introduced no evidence. It subsequently appeared by statements and acts of the plaintiff that his injuries were not of a permanent character, but that he had at the time of the trial fully recovered. Upon that state of facts, the court ordered a new trial; and on appeal the general term held that .the trial justice exercised his discretion wisely. It was held that the new evidence was not cumulative, as no evidence of that character had been given by the defendant on the trial. The court said:
“It 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 the newly-discovered evidence, with a view of, at least, lessening the damages. If the affidavits presented by the defendant are true, the plaintiff deliberately misrepresented his physical condition, with a view of deceiving the court and jury.”
The case of Brooks v. Railway Co., 10 Misc. Rep. 96, 31 N. Y. Supp. 179, presented a similar question. In that case Mr. Justice Rumsey, the trial judge, refers to Cole v. Coal Co., supra, where the verdict was set aside upon the ground that it was based upon the theory, which the evidence tended to sustain, that the injury received by the plaintiff was of such a nature that he was physically ruined, and would be utterly unable to do any work, to stand erect, or to support himself at all, while "the affidavits presented by the defendant upon that motion showed that immediately after the verdict he had experienced a sudden and miraculous recovery, having become, from a confirmed invalid, a strong and vigorous man, able to do a day’s work as well as anybody. * * * The court held that this condition of affairs tended to establish a practical fraud practiced upon the court and the jury, and that justice re*950quired that these new facts should be presented to another jury, which might pass upon the question of the damages suffered, and of all those facts before it.” The difference between the facts upon which that, case was decided and the case at bar is obvious.
The court below denied this motion. It is quite possible that if the judge before whom the trial took place, having personal knowledge as to what transpired in the court room, had considered that any act of the plaintiff or his parents had conveyed to the jury false impressions as to the extent of the injury, and that this had improperly influenced them, and for that reason had granted a new trial, we should not have interfered with his determination; but the motion has been denied by the court below, and I do not think that this court is justified in reversing that action.