The defendant moved for a new trial, on the ground of newly discovered evidence, and also for alleged errors on the trial, and that the verdict is contrary to evidence. This motion was denied at the special term, and the defendant has appealed to the general term.
The newly discovered evidence is objected to on the ground that it is cumulative and impeaching; Upon the trial the plaintiff proved conversations with the defendant, recommending Holt as good and responsible, on which he relied to support his action. The defendant offered no testimony on this point. I am at a loss to see how the evidence now offered can be called cumulative. It is not to sustain.the testimony of Bishop, or of any other witness sworn on the trial, but to prove parts of a conversation which Bishop did mot prove. Nor would the objection be availing if Bishop had testified more fully as to the conversation, unless he had spoken of this part of the conversation.
I should, however, think testimony cumulative, if it was a repetition of what a witness, called by the adverse party, had testified to. It is conceded it would be so in reference to witnesses on the part of the party moving for a new trial, and certainly it can be no cause for a contrary rule, that the testimony to which the new evidence is cumulative, comes from the opponent’s witness, whose character for truth cannot be disputed by the party who called him.
Nor do I think this testimony can be called impeaching testimony. It may incidentally have such an effect, but it does not necessarily follow that such should be the consequence. It may be considered as a portion of conversation which the other witness did not hear, or has forgotten or misunderstood.
As I have come to the conclusion that the newly discovered evidence is sufficient to entitle the plaintiff to a new trial, I deem it unnecessary to discuss the question, whether the verdict was contrary to evidence, as the same terms of granting a new trial, viz., the payment of costs, are imposed in both cases. The evidence, on some points, may be slight, but I am not prepared to say that the judge could have nonsuited the plain*115tiff with propriety, and if not, then the decision upon the facts belonged to the jury. The testimony of Tiffany was objected to, on the ground of irrelevancy, and not that the witness stated his opinion of the conversation. The latter ground, if it had been taken at the trial," would be á good one for excluding it. If it had been taken then, the objection could have been removed by requiring the witness to state the conversation itself, as near as he could remember it.
It can hardly be disputed, that similar acts with those complained of are admissible in evidence in actions of this character, whether before or after the alleged false representations. They must be of a similar character; that is, of a fraudulent character; but such fraud may be inferred from showing a representation, such' as is proved here, and then by asking the jury to infer knowledge of its falsity from other matters proved in the cause. I do not see any error in this ruling.
My conclusion is, that a new trial should be granted, on payment of costs.