means of a conspiracy between the plaintiff herein and one of her attorneys and said witnesses, and by means of an imposition and fraud upon the court." The motion was denied, and an order entered to that effect, but, upon a reargument, the order was vacated, and the matter sent to a referee to determine and report upon the questions of fact arising upon the affidavits used upon the motion, with a provision that the motion to vacate the judgment might be renewed upon the coming in of the referee's report. In pursuance of this order, several hearings were had before the referee, and the testimony of many witnesses taken, including that of the plaintiff's attorneys, and all the witnesses who testified as to the cause of the accident at the trial. The referee reported, among other things, as follows: injustice has in this "I am fully convinced that a grave and great . . occurred by reason of the fact of the entry of the judgment action in favor of the plaintiff. . . . I am fully convinced that the judgment above referred to was obtained by collusion, fraud, and conspir Rich v. Mayer, NEW TRIAL FOR PERJURY,-continued. 9 26 St. Rep. 109. People v. Mayhew, 19 Misc. 313; 78 St. Rep. 206; 44 Supp. 206. There must not be such delay by the moving party, in his application for a new trial, that it can be said he is guilty of laches. Raphelsky v. Lynch, 34 Super. 31; 43 How. P. 157. Dart v. Kudlich, 36 St. Rep. 563; 13 Supp. 61. Keister v. Rankin, 34 App. Div. 288; 88 St. Rep. 274; 54 Supp. 274. The fact that an appeal has been taken and the judgment aflirmned, does not bar the defeated party from applying for a new trial upon the ground under discussion, providing he has acted promptly upon discovery of the perjury. Keister v. Rankin, 34 App. Dic. 288; 88 St. Rep. 274; 54 Supp. 274. The same rule which applies to civil cases in regard to new trials upon the ground of false testimony, prevails in criminal cases. People v. Baker, 27 App. Div. 597; 84 St. Rep. 771; 50 Supp. 771. b. Fictitious case supported by perjury. Where it is plain that the action was a conspiracy, conceived in fraud and 1899] Nugent v. Metropolitan Street Ry. Co. acy entered into on behalf of the attorneys for the plaintiff and of the several witnesses who had theretofore testified on behalf of the plaintiff. From the testimony produced before me and my observation of the respective witnesses, I am convinced that the allegations in the defendant's affidavits upon which the motion to vacate the judgment was originally made are true in all material particulars, and that plaintiff's witnesses, Sadie McDonald, Mary Langstaff, Ellen O'Reilly, and Margaret Fraser all testified falsely before the jury as to material facts, and that the first two never saw the accident at all, and that the last two never saw the things to which they testified. I am further convinced that these wit nesses were produced at the trial with full knowledge of their incapacity on the part of the plaintiff's attorneys, and that they had been coached and schooled in such false testimony by said attorneys, and that by the latter to a considerable degree such testimony was manufactured and inspired." On the coming in of the report, the motion to vacate the judgment was renewed, and again denied, upon the ground, as appears from the opinion of the learned justice who heard the motion, that he did not agree with the referee as to his findings of fact. NEW TRIAL FOR PERJURY,-Continued. maintained in perjury, which facts were not disclosed until after the trial, and then by reason of a quarrel between the conspirators, a new trial is properly granted. Raphelsky v. Lynch, 34 Super. 31; 43 How. Pr. 157. So, in an action of trover to recover for moneys alleged to have been delivered to the defendant, a new trial will be granted where it is shown to the court, with practical certainty, that such moneys were never delivered to the defendant and that the whole action is a fiction supported entirely by perjury. Fabrilius v. Cook, 3 Burr. (Eng.) 1771. c. Perjury of party to action. It is proper to grant the defendant a new trial in an action by a married woman against a sheriff for taking certain personal property, claimed as her separate estate, upon judgment and execution against her husband, where she testified as to her ability to purchase the property claimed, with moneys of her own on deposit in a savings bank, and where it is shown beyond dispute by affidavit, that she had no account at the bank in question at the tine mentioned by her. Wehrkamp v. Willet, 1 Daly, 4. After a very careful examination of the voluminous record, we are satisfied that the conclusion of the referee was amply sustained by the testimony taken by him. This testimony was to the effect that all of the plaintiff's witnesses at the trial who testified as to the circumstances of the accident, namely, Sadie McDonald, Mary Langstaff, Ellen O'Reilly, and Margaret Fraser, testified falsely; that two of them, at least, did not see the accident at all; that the eyesight of another was so defective that she could obtain no accurate idea of it; and that the fourth did not see what she swore to. Sadie McDonald, one of the witnesses who testified at the trial as to the manner in which the accident occurred, testified before the referee that she did not see the accident, and that at the time it occurred she was so situated that she could not see it. She was corroborated in her statements before the referee by three unimpeached witnesses, and as to her testimony the referee stated: "I am entirely satisfied that the witness Sadie McDonald swore falsely at the trial in this action. That she so committed perjury at the trial was indicated at the trial by the testimony, as given at that time by Camille NEW TRIAL FOR PERJURY,-continued. A new trial will also be granted in an action upon a due bill alleged to have been given by a testator, the executor's defense being payment, and the evidence introduced by him to support that defense being wholly circumstantial, where the newly discovered evidence is to the effect that a new witness would testify that plaintiff had told him there was nothing due on the bill in question, that the same had been paid, and a settlement made between the parties, such due bill not being surrendered on the alleged ground that it was lost. Guyott v. Butts, 4 Wend. 579. In the case last cited the court laid down the rule that a new trial will be more readily granted, upon the ground under discussion, where the action is brought by or against an executor or administrator and the application for the new trial is made by him. Thus, the defendant, in an action, brought against him as executor of the plaintiff's deceased divorced wife, to recover property alleged to have been obtained of the plaintiff by fraud and while he was intoxicated, is entitled to a new trial upon the ground of newly discovered evidence consisting of an unserved answer in an action against the plaintiff and his said wife, 1899] Nugent v. Metropolitan Street Ry. Co. Petulli, that Sadie McDonald could not have been a witness to the accident. Sadie McDonald now, upon her sworn affidavit, annexed to the moving papers, confesses that she did so commit perjury. I believe that she tells the truth, and that it was physically impossible for her, from her physical situation, to have been a witness to the accident." Mary Langstaff, another witness who testified for the plaintiff at the trial as to the cause of the accident, in her testimony before the referee stated that she did not see the accident, and that at the time it occurred she was inside the house talking to her mother, and she was corroborated in this statement by her mother. As to her testimony, the referee stated: "The witness of the plaintiff Mary Langstaff has also made an affidavit in which she confesses that she, likewise with Sadie McDonald, committed perjury upon the trial in testifying that she had been a witness to the accident. Her testimony, as given before the undersigned, is corroborated by that of her mother, Mary Langstaff. I am likewise fully satisfied that she also could not have seen the accident from the most favorable position in which she placed herself at the time of the accident." NEW TRIAL FOR PERJURY,-continued. in which he affirmed, under oath, the validity of the conveyances to the wife. Wilson v. Clancy, 6 App. Div. 449, 39 Supp. 658. A new trial will be granted in an action for assault where upon the trial there were two witnesses in direct conflict as to whether the assault took place, and the newly-discovered evidence consists of statements alleged to have been made by the plaintiff indicating there was no foundation for the charge of assault. Moran v. Friedman, 88 Hun, 515; 69 St. Rep. 74; 34 Supp. 911. So, a new trial will be granted in a case in which the defense was based upon the evistence of a certain agreement claimed to have been made by the defendant, but denied by the plaintiff, where a third person made affidavit that he heard such agreement discussed between the parties, and plaintiff expressed willingness to make the same, which presence of such person defendant swore he only recalled by his informing him thereof after the trial. Huebner v. Roosevelt, 7 Daly. 111. A new trial will likewise be granted in an action in which the complaint admitted payment of a certain sum on account, and demanded judgment for the balance, plaintiff's testimony being that part of such payment was The witness O'Reilly, when examined before the referee, was suffering from impaired vision, which she admitted had existed for about five years, and to such an extent that it would have been impossible for her to see the accident from the location in which it is conceded she then was. As to her testimony, the referee stated: "I am fully convinced that the witness on behalf of the plaintiff Ellen O'Reilly, who swore that she saw the accident from in front of the stationery store of her husband at No. 30 Madison street, could not have seen this accident clearly by reason of her impaired vision." The only other witness who testified for the plaintiff at the trial as to the cause of the accident was Margaret Fraser, and it requires only a casual examination of the testimony given by her before the referee, in connection with that given by her upon the trial, to show that little or no reliance can be placed upon it. If she told the truth before the referee, then she falsely testified NEW TRIAL FOR PERJURY,-continued. on account of a claim other than that in suit, and the new evidence consisting of a letter from the plaintiff to the defendant's agent, tending to show that the payment admitted was made wholly on general account, and otherwise tending to impeach plaintiff's testimony. Newhall v. Appleton, 47 Super. 38. In an action for services as architect, wherein plaintiff clamed on a quantum meruit, five per cent of the cost of the building, to which defendant interposed the defense of an agreement to pay two per cent, a new trial should be granted, where the principal contention upon the former trial was as to whether an unsigned contract which the plaintiff, at defendant's suggestion, caused to be made by a stenographer, contained a clause providing for the payment of two per cent for the services or whether there was a blank space before the words "per cent." as claimed by plaintiff, and the newly-discovered evidence was that of the stenographer, who would corroborate defendant's testimony, and who, until some time after the trial, defendant could not find. Keister v. Rankin, 34 App. Div. 288; 88 St. Rep. 274; 54 Supp. 274. So, a new trial is properly granted in an action against a surety upon an indemnity bond, upon the trial of which the president of the plaintiff corporation testified that the plaintiff had no other security than the bond in suit, where the defendant discovered, after the trial, that the plaintiff |