By the Court,
Sutherland, J.This is an application for a mandamus to the superior court of the city of New-York, commanding them to vacate a rule granting a new trial in this case on the ground of newly discovered evidence. In support of the application it is alleged, 1. That the. affidavits shew that the defendants were guilty of gross negligence in not ascertaining, previous to the former trial, that Russell, the witness whom they now wish to use, was a material witness for them; and 2. That the newly discovered evidence of Russell consist merely of cumulative facts and circumstances relative to the same point or matter which was controverted upon the first trial.
It is a well established rule of this court that a new trial will not be granted on the ground of newly discovered evidence, if it appears that the evidence might, with reasonable attention and diligence, have been procured before the first trial, however material it may be to the party. Williams v. Baldwin, 18 Johns. R. 489. 2 Caines 163, opinion of Thompson, J. 3 Caines, 186, opinion of Spencer, J. And it is equally well settled that a new trial will not be granted where the newly discovered evidence consists merely of additional or cumulative facts and circumstances relating to the same matter or point which was principally controverted upon the former trial. Steinbach v. The Columbian Ins. Co. 2 Caines, 132. Smith v. Brush, 8 Johns. R. 86. Pike v. Evans, 15 id. 212. The preservation and observance of these rules are obviously of great practical importance in the administration of justice. It is well observed, in the cases referred to, that it is the duty of parties to come to trial prepared upon the principal point, and that new trials would be endless if every *122additional circumstance bearing on the fact in controversy, Qr d¡scovery 0f an additional witness, was a cause for a new ti'ial. Such a practice would not only occasion great deIay> xvou^d °ffer strong temptations to the subornation and commission of perjury.
Cases sometimes arise in which it is difficult to determine whether the newly discovered evidence is strictly cumulative or not; but where it is clearly of that character, consisting of additional witnesses to the same facts testified taon the former trial, or of additional facts and circumstances tending to establish the principal point controverted before, it has uniformly been held, not only in this state but in England, that it is no ground for granting a new trial. An exception to this rule has been made in this state in relation to trials investigating the title to lands in our military tract, founded upon consideration peculiar to that class of cases. 14 Johns. R. 186. 5 Cowen 207. But with that exception, the rule is believed to be universal.
It appears to me, from the affidavits produced, that the plaintiffs were guilty of great negligence in not procuring the testimony of Russell, (which is the newly discovered evidence,) upon the former trial, and also that it is merely cumulative evidence in the strictest sense of the term; and that upon either ground, if it had been an application in this court, the motion for a new trial would have been refused.
But it is contended that admitting the court below to have erred in granting a new trial, still that the granting or refusal of a new trial is a matter of discretion, not depending upon any fixed and established rules of law ; and it is not competent for this court to interfere with or control inferior jurisdictions in this department of their functions.
It is undoubtedly a well established principle, and has been frequently recognized and expressly decided in this court, that where a discretion is vested in an inferior tribunal, and that discretion has been exercised, a mandamus will not be granted. A mandamus is proper only where some legal right has been refused or violated, and there is no other appropriate legal remedy. Bacon’s Abr. Mandamus, 527. 3 Black. Comm. 110. 3 Burr. 1265. 2 Strange, 881. The People *123v. The Supervisors of Albany, 12, Johns. R. 414.14 East, 395. 15 id. 117. Hull v. Supervisors of Oneida, 19 Johns. R. 260. Ex parte Nelson 1 Cowen, 423. 2 Cowen 479. 3 id. 59. 6 id. 392. 7 id. 363. 1 Wendell, 297. What is meant by the court when they speak of the discretion of inferior iribunals, and say that they will not interfere with or attempt to coerce if, will be best ascertained by adverting to some of the cases in which that language has been used.
In the case of The People, ex rel. Wilson, v. The Supervisors of Albany, 12 Johns. R. 414, the relator Wilson was a constable, and in that character had removed certain paupers from the city of Albany to the adjoining towns; for which services he presented an account of $102 to the supervisors. They examined the account, and allowed $28 thereof, and disallowed the rest, on the ground that it was extravagant and unreasonable. The court refused an application for a mandamus to the supervisors, on the ground that the constable had no legal right to any particular sum, the act under which lite services were performed having declared that he should be paid such sum as the supervisors of the county should judge reasonable; and it is asked, if a mandamus should be granted, what would be its command % certainly not to allow any specific sum ; that would be assuming a discretion which the legislature have vested in the supervisors. We could only command them to examine the account, and, in the language of the statute, allow such sum as they should judge reasonable. This they have already done.
In Giles’ case, 2 Strange, 881, a mandamus was asked to certain justices to grant him a licence to keep an ale house. The court refused it on the ground that the justices had a discretion to grant or refuse a licence to whom they pleased, and observed that such an application was never made before. Salk. 45. 1 Burr, 556.
In Ex parte Baron & Lyon, 6 Cowen, 392, the court below had set aside a regular default, and let the defendant in to plead on payment of costs. The plaintiff moved this court for a mandamus to the common pleas to vacate that rule. It is observed that the common pleas must be their own judges, upon the circumstances before them, whether they will *124set aside a default. The granting or refusing of such an appHcation is governed by no fixed principles, No positive rule ^aw has been violated by the court below, nor can we fix bounds to their discretion upon the subject. * '
. In Ex parte Benson, 7 Cowen 363, a motion had been made against the relator in the court below and taken by default, his attorney being absent. The court refused to open the default, and an application was made to this court for a mandamus. The mandamus was refused, on the ground that it was a mere matter of discretion with the court whetheer they would open the rule or not; that so far as the rules of practice in inferior courts rest in discretion and violate no rules of law, we would not interfere with them.
In Ex parte Baily 2 Cowen, 479, a motion was made in the court below for a new trial on various grounds, and among others that the verdict of the jury was against the weight of evidence. The motion was refused, and upon an application for a mandamus, this court observe, that though in extreme cases we might interfere, and control inferior courts upon questions of fact, presented in the from of a motion for a new trial, yet it is a remedy which should be used very sparingly. A contrary course would draw before this court an examination of those questions which address themselves merely to the discretion of the inferior court. We should be perpetually appealed to for. the adjustment of rights undefined by- law. This would result in an endless conflict of opinion upon questions, which must from their very nature be finally determined by the court below, because they cannot be reached by the rules of law; and although we may think the inferior court erred, yet we will not interfere. Extreme cases may be supposed, which form exceptions to this doctrine ; as where an action is brought on a promissory note, the execution of which is proved beyond all doubt, and yet the jury find against it, should the court below refuse a new trial, we might interfere but in ordinary cases it would be improper ; for even where a verdict is plainly against law, yet. a new trial may in many cases properly be denied, as if the controversy be very trifling in its nature or insignificant in amount.
*125These cases sufficiently indicate the nature of the digcrelion, the exercise of which by inferior tribunals or offleers this court will not undertake to regulate or coerce, It is that discretion which is not and cannot be governed by ° . any fixed principles or rules. We will not set up our judgment in opposition to the judgment of a board of supervisors, as to what is a reasonable compensation for services performed by a constable for the public, no sum having been fixed by law. It is their judgment and discretion, and not ours, to which the legislature have left the decision of that matter. But if they refuse to allow any thing, either on the ground that they have no discretion upon the subject, or that the officer has no right to compensation, then we will interfere and determine whether they have the power to make an allowance, or whether the officer is entitled to be paid. The powers of the supervisors and the fights of the officer are questions of law. They are legal powers and rights, if they exist at all. Bright v. Supervisors of Chenango, 18 Johns. R. 242. 19 Johns. R. 260. We will not direct the town officers to grant a licence to A., or to refuse it to B.; because neither A. nor B. have any legal right to a licence. The officers have a right to grant or refuse it to whom they please. We will not. interfere with that portion of the practice of in= ferior courts which does not depend upon established principles, or is not regulated by fixed rules. We will not compel them to open, or prohibit them from opening a default upon the usual terms, as a general rule; because such applications are founded upon special circumstances, which may impress different individuals or courts very differently. There is no fixed standard, by which we can say in such case the inferior court has erred. We may think so, but that is not sufficient. But.if an inferior court should deny to a party the benefit of an established general rule of practice, not depending at all upon circumstances, I apprehend we should interfere. For instance, if it was a rule of such court that the first default should in all cases, as a matter of course, be opened upon the payment of the taxable costs, and they should in a given case refuse to open such default, we should undoubtedly not only have the right, but should be bound to compel them to do it by mandamus. Yet, although it might *126rest entirely in their discretion whether they would retain the ru]e or not, still, as long as it was retained, it would be bind-lug upon them. It conferred legal rights upon their suitors, which they had no power to withhold from I hem. They ... , , . .. . would have parted with their discretion, and substituted in Us place a clear and well defined rule; and the usage of courts may confer rights upon parties, and impose obligations upon themselves as sacred and imperative as written rules. The only difference is in' the evidence of their existence. No court has a right arbitrarily to change its established course of proceedings in relation to a particular case.
Applications for new trials on the ground that the verdict is against evidence, are in general addressed to the discretion of the court. There is no standard by which the weight of conflicting evidence can be ascertained. Different courts and juries and individuals would entertain different opinions upon the subject, and each must judge for themselves. But where the evidence is all upon one side, and clear and satisfactory, it ceases to be a matter of discretion; there is no room for difference of opinion; and it would be an abuse, not an exercise of discretion, to refuse a new trial; and we might, and I think ought to interfere. Where the discretion of a court is spoken of,'a sound legal discretion is meant, not an arbitrary sic nolo. The case Ex parte Morgan, 2 Chitty’s R. 250, as stated by the counsel in opposition to this motion, is in perfect harmony with the current of decisions in this court. The court of king’s bench refused to interfere by mandamus to compel an inferior court to grant a new trial. The facts of the case are not stated. But the court say, among other things, that they cannot interfere to regulate the practice of every inferior court, because every inferior court is the proper judge of its own practice. It must undoubtedly be a very extraordinary case in which a mandamus would be issued to compel an inferior court to grant a new trial. The general language of the court must be taken in connection with the case in which it is used.
These observations are equally applicable to motions for new trials founded on newly discovered evidence. It has been shewn that there are certain principles, in relation to *127such applications, which are clearly settled and well defined by long continued practice and an uninterrupted series of decisions in our own and other courts. Those principles are, 1. That a party is bound and presumed to know the general leading points which will be litigated in his case; 2. That if he omits to procure evidence, which with ordinary diligence he might have procured, in relation to those points, upon the first trial, his motion for a new trial for the purpose of introducing such testimony shall be denied; 3. If the newly discovered evidence consist merely of additional facts and circumstances going to establish the same points which were principally controverted before, or of additional witnesses to the same facts and circumstances, such evidence is cumulative, and a new trial shall not be granted.
In cases to which these principles clearly and unquestionably apply, the granting or refusal of a new trial is not a matter of discretion. The parlies have a legal right to a decision conformable to those principles. Where there is doubt upon the point of negligence, or as to the character of the evidence, or as to its materiality, it becomes a matter of discretion, and the court will not, perhaps I ought to say, can not rightfully interfere.
But no such doubts exist in this case. It appears to us that the plaintiffs were guilty of gross negligence in not procuring the testimony of Russell upon the former trial, and also that his evidence, as disclosed in the affidavits, is clearly and exclusively cumulative. It goes to the precise point which was litigated before, and merely corroborates the plaintiffs’ former witnesses by a repetition of their testimony, with few additional facts and circumstances. We think it, therefore, a proper case for a mandamus.
It is very possible that the purposes of justice might be sub-served in this individual case by the granting of a new trial; but general principles, whose operation has been found salutary, and which have grown into authority under the sanction of repeated decisions and almost immemorial usage, cannot yield to the hardship of particular cases. It is of cardinal importance that the rules and principles which regulate the proceedings and decisions of our courts should be uniform and stable.
*128The security of the citizen is essentially increased whenever the territory of undefined(discretion in any of the departments of our government is circumscribed by the establishment of well defined and clear principles.
The jurisdiction of this court by mandamus is one of immense importance and extent. It belongs to this court alone. It extends to all inferior courts and tribunals, and officers, executive, ministerial, or judicial within the state. It operates summarily, and in some cases definitively, upon most important interests. In view of these considerations, we have taken this occasion to explain somewhat at large, some of the leading principles which define the extent and regulate the exercise of this power, so far as they seemed to be applicable to the case before us.