(dissenting). I dissent and vote to reverse and deny the motion for a new trial.
The alleged newly discovered evidence relates to physical circumstances such as the presence of warning signs, the condition of the road, road construction in progress and the condition of the motor vehicle involved in the occurrence, evidence of which was obtainable in the exercise of reasonable diligence soon after the event. Testimony available before the trial as it is at the time of the motion is not such newly discovered evidence as would warrant a new trial. (Oakdale Contr. Co. v. City of New York, 262 App. Div. 494; Collins v. Central Trust Co., 229 App. Div. 363; Joannes Bros. Co. v. Federal Sugar Refining Co., 218 App. Div. 396; Nathan v. Herman N. Karp, Inc., 214 App. Div. 490; Baily v. Hornthal, 1 App. Div. 44.) Moreover, the proposed evidence will not change the result. (Cole v. Swagler, 308 N. Y. 325; Galbraith v. Busch, 267 N. Y. 230; Lo Piccolo v. Knight of Rest Prods. Corp., 7 A D 2d 369, affd. 9 N Y 2d 662; Evans v. Groves & Sons Co., 315 P 2d 335.)