In the event of the payment by appellant’s counsel of the costs imposed by the order of Mr. Justice McCarthy, and the General Term reversing said order, I think that the interests of justice require that a new trial should be had herein.
It appears that the plaintiff diligently searched for and was unable to find the delivery receipts alleged to have been signed by Atfield, until after the trial.
This is in a sense newly discovered evidence, particularly under the circumstances of this case; the same thing may be said of witnesses whose testimony plaintiff was unable to procure at the trial.
The fact that they refuse to make affidavits setting forth their knowledge, is shown, and therefore it is impossible to submit them, because they refuse to make the same under such circumstances.
*218It would be unjust to deny a new trial for the reason that such affidavits are not submitted to us.
We do not believe that the appellant suffered any surprise at the trial, except such as is usually experienced by counsel and their clients upon the rendition of an adverse verdict.
Order appealed from reversed upon condition that the General Term costs and all motion costs imposed and still unpaid be paid within five days after entry of order herein.
If these conditions are not satisfactory, and not complied with, then said order is affirmed, with costs.
Settle order upon notice.
Ehrlich, Ch. J., concurs.