(concurring with the Chief Justice on one point).
The attempt to impeach the former judgment on the ground of fraud is practically abandoned; but it is insisted that plaintiff is entitled to a new trial on the ground of newly discovered evidence. Plaintiff was possessed of the newly discovered evidence for a period of about five months, during which time he could have had the former judgment vacated and a new trial allowed by making application therefor to the court in the former action, in accordance with the statute. That mode of relief was plain, speedy and adequate. In my *463opinion, plaintiff’s negligence in not making application to have the former judgment vacated is conclusive against his right to seek the same relief by another action in the nature of a bill of review. To this extent I concur in the opinion of Chief Justice Hayt.
My brother Goddard concedes that if plaintiff had opportunity to apply for a new trial on the ground of newly discovered evidence, under section 217 of the code, and neglected so to do, he would be precluded from seeking relief upon the same ground in a suit in equity. I am unable to see why his neglect to apply for a new trial under section 272 of the code should not have the same effect. To have secured a new trial under section 217 would have required a showing of diligence which might have been difficult to make, whereas he was entitled to a new trial under section 272 as of right, without showing cause; and a new trial, whatever the mode of obtaining it, would have afforded him the same relief. As to other questions so ably discussed by my associates, I express no opinion.
Affirmed.