I cannot concur with my associates in the conclusion they have arrived at.
This court has heretofore determined (Whitney v. Saxe, 18 N. Y. St. Repr. 1020), that a new trial will not be granted unless the new evidence has come to the knowledge of the applicant since the trial, and that it was not owing to the want of due diligence that it was not sooner discovered.
An examination of .the record clearly shows that the plaintiff has not brought himself within the rule laid down in the foregoing case.
The order appealed from should be affirmed, with costs.
Ordered accordingly.