1899] Nugent v. Metropolitan Street Ry. Co. at the trial as to material issues in the case, and as to her testimony the referee concluded: "There remains on behalf of the plaintiff in support of the judgment only the witness Margaret Fraser. Her testimony as given before the undersigned, when compared with that given upon the trial, is replete with contradictions, and I consider her testimony unworthy of belief." The testimony taken by the referee not only justified his finding that these witnesses testified falsely upon the trial, but it also justified the finding that they were induced to give such false testimony by one, if not by both, of plaintiff's attorneys. The witnesses McDonald and Mary Langstaff both admitted that they had committed perjury at the trial, and that they were induced to do so by one of plaintiff's attorneys. It may be conceded that, these witnesses having admitted that they once committed perjury, their testimony should not be accepted without corroboration. But they were corroborated as to their statements before the referee NEW TRIAL FOR PERJURY,-continued. had other security upon real estate from which it had realized a considerable sum of money, which latter, however, was not applied upon the obligation secured by the bond in suit as agreed. American Surety Co. v. Crow, 17 App. Div. 634; 79 St. Rep. 279; 45 Supp. 279. Likewise, a new trial will be granted, in an action for money loaned, upon the trial of which plaintiff testified he loaned defendant $48,000, without any security or even a receipt, and that he had made such loan because defendant could "put him into something good," and he produced an alleged bank account showing drafts of sums of money sufficient to make the loans, the only corroboration of plaintiff's testimony being that of his clerk, who said he was present on an occasion when the defendant received $5,000 from the plaintiff, where the defendant's grounds for such new trial consist of newly discovered evidence showing that plaintiff's alleged bank account did not represent money belonging to him, and that he had made various remarks inconsistent with his testimony on the trial. Upington v. Keenan, 50 St. Rep. 474; 21 Supp. 699. So, a new trial will be ordered in an action for malicious prosecution in which the plaintiff prevailed, and the criminal charge was the making of false entries and appropriating the moneys, which entries plaintiff testified covered payments made for the company employing him to V. for in every material particular, not by one only, but by several witnesses, as well as by the facts and circumstances connected with the case. If these corroborating witnesses told the truth,-and there is no reason to doubt but that they did,—then one or both of the plaintiff's attorneys perpetrated a deliberate and wilful fraud upon the court by entering into a conspiracy with the plaintiff and certain witnesses to obtain a judgment by false and perjured testimony. The testimony given by these witnesses before the referee as to the false testimony given at the trial being inspired by the plaintiff's attorneys was met only by a general denial by these attorneys, who were not entirely disinterested. Before the action was commenced, they obtained a written agreement by which they were to have, as their compensation for bringing and trying the action, 50 per cent of the entire recovery. The least that can be said is that the testimony before the referee was con NEW TRIAL FOR PERJURY,-continued. commissions at the latter's request, where the newly-discovered evidence was that of V., who would contradict the testimony of the plaintiff upon the point in question. Dart v. Kudlich, 36 St. Rep. 563; 13 Supp. 61. So, in an action upon a check drawn by the defendant to plaintiff's order, which defendant contended was not to be paid until a certain third person furnished the funds therefor, but which agreement plaintiff denied, a new trial will be granted where a motion therefor is based upon the discovery by defendant of testimony to the effect that plaintiff had made admissions that he knew of the conditions concerning payment of the check. Oakley v. Sears, 1 Robt. 73. In an action against stock brokers for the proceeds of a stock transaction, where the defense was a loss on a subsequent order, a second new trial will not be granted on the ground of the falsity of plaintiff's testimony upon the subject of his absence from the city on a certain day, when the previous trial was granted upon newly discovered evidence consisting of testimony of defendant's cashier that he was present and overheard a conversation between the plaintiff and one of the defendants in which plaintiff gave the order denied by him. In an action for personal injuries, upon the trial of which plaintiff ob 1899] Nugent v. Metropolitan Street Ry. Co. flicting, and we know of no reason why the general rule in such cases should not be applied. The referee saw the witnesses, he heard them testify, observed the manner in which they gave their testimony, and he was in a much better position to pass upon the truthfulness and accuracy of their statements than the learned justice at special term. Westerlo v. DeWitt, 36 N. Y. 340, 344; Crane v. Baudouine, 55 N. Y. 256; Baird v. Mayor, etc., of New York, 96 N. Y. 567. In Baird v. Mayor, etc., of New York, supra, the court said: "When there is evidence on both sides, and the case is balanced, and the mind of the court has been called upon to weigh conflicting statements and inferences, and to decide upon the credibility of opposing witnesses, much weight must be accorded to the especial adaptation of the trial court to investigate and determine such questions. Any other rule would nullify the peculiar advantages which that tribunal possesses in observing the manner and appearance of the witnesses produced, and the various physical and mental peculiarities by which the mind of a professional observer de NEW TRIAL FOR PERJURY,-continued. tained a verdict, and upon which plaintiff testified that he was permanently injured and could do no manual labor without pain, a new trial should be granted, where the defendant shows by affidavit, that he can prove that since the trial plaintiff has performed manual labor, assaulted a person in which he showed great agility and strength, performed feats of strength for amusement and bad admitted that he was a vigorous man. Cole v. Fall Brook Coal Co. 40 St. Rep. 834; 16 Supp. 789. Admissions of a party alleged to have been made since the trial, which are inconsistent with his testimony thereon, are not sufficient ground for a new trial, when such admissions are satisfactorily explained or denied by the party alleged to have made them. Fowler v. Kelly, 43 Super. 380. In an action to recover damages for breach of promise to marry a new trial is properly refused the defendant, where the latter presents the affidavits of two proposed witnesses in which they allege that the plaintiff stated to them that defendant had never promised to marry her, but that she was going to make him pay anyhow, which admissions plaintiff denied. Rich v. Mayer, 26 St. Rep. 109. In an action to recover moneys alleged to have been obtained by fraud and misrepresentations, a new trial will be granted the defendant, where a disinterested and credible witness deposes that plaintiff stated to him termines the degree of credit which ought prudently to be attached to oral testimony." The finding of the referee is, as we have already said, not only sustained by the evidence, but it is difficult for us to see how he could have reached a different conclusion. If we are right in this, then the motion ought to have been granted. But it is urged that a judgment will not be vacated merely because it is based upon or procured by perjured testimony. This is undoubtedly the general rule, but in the present case there is something more than that. We have here, in addition to the perjured testimony, the fact that it was inspired and manufactured by one of the plaintiff's attorneys; that he entered into a conspiracy with the witnesses for the purpose of obtaining a judgment, thereby committing a fraud upon the court. The object of a trial is to do justice, and whenever it is made to appear that one of the parties to the litigation has, by fraud, con NEW TRIAL FOR PERJURY,-continued. the nature of the transaction involved in the case, and that such statement was in direct conflict with plaintiff's testimony at the trial, and in accordance with defendant's testimony. Weber v. Weber, 5 Supp. 178. A judgment in favor of the defendant will be set aside and a new trial granted, where it is claimed that the defendant testified falsely on the trial, and the plaintiff has, since the trial, discovered evidence of that fact in a postal card from the defendant and her letters and checks, which he had forgotten and which he found since the trial. Roundey v. Stillwell, 19 Misc. 415; 77 St. Rep. 1132; 43 Supp. 1132. The granting of a new trial is warranted in an action to recover on an alleged agreement to pay $5,000 a year for plaintiff's services, which plaintiff testified upon the trial had been entered into between the parties, where upon a previous trial in an action between other parties, the plaintiff testified that he was to be paid for the services in question, $2,500 a year besides commissions which would make a total sum of about $3,500. Coy v. Martin, 24 Misc. 211; 87 St. Rep. 540; 53 Supp. 540. Likewise, a new trial will be granted in an action for personal injuries arising from alleged negligence, upon the trial of which plaintiff succeeded, where the plaintiff and two witnesses testified on such trial that he was kicked off a car by the conductor, which was denied by the defendant's 1899] Nugent v. Metropolitan Street Ry. Co. nivance, conspiracy, or any other dishonest act, prevented his adversary from having a fair trial, then the court never hesitates to use the power which it possesses to rectify that wrong by vacating the judgment obtained, and directing a new trial. Verplanck v. Van Buren, 76 N. Y. 247; Jordan v. Volkenning, 72 N. Y. 300; Keister v. Rankin, 34 App. Div. 288; 88 St. Rep. 274; 54 Supp. 274. In Jordan v. Volkenning, supra, Judge Rapallo said, "There can be no question but that a judgment or an award obtained by false testimony fraudulently given by the party benefited thereby is voidable;" and in Verplanck v. Van Buren, supra, Judge Folger said, "Fraud and imposition invalidate a judgment, as they do all acts;" and in Patch v. Ward, 3 Ch. App. 203, it is said that there must be actual fraud,—"such that there is a malus animus on the part of the person chargeable with it, the mala mens putting itself in motion and acting in order to take an undue advantage of an NEW TRIAL FOR PERJURY,-continued. witnesses, who testified that the plaintiff jumped from the car, and affidavits of newly discovered witnesses are presented which state that they saw plaintiff jump and that he stated to one of such witnesses directly after the accident that he went to jump off and caught his foot. Kring v. New York Cent. & H. R. R. Co. 94 St. Rep. 1114; 60 Supp. 1114. It is improper to grant a new trial in an action upon a note for $500, made by the defendants, who set up the defense that no value had been given therefor and that a blank note signed by the defendants was delivered to the plaintiff, a quasi manager of the defendant company, to be used in business only, where there were only two witnesses upon the trial, the plaintiff and the defendant's president, the former testifying that he gave $1,000 cash for two $500 notes of the defendant, which on cross-examination he testified was obtained from money taken from the person of his mother after her death, but in proceedings upon his mother's estate he had previously made affidavit that his mother did not have that amount of money. Stewart v. J. Harper Bonnell Co. 20 Misc. 174; 79 St. Rep. 735; 45 Supp. 735. So, a new trial will be denied the defendant in an action by an attorney for professional services, the value of which defendant disputed, where the plaintiff, on cross-examination denied he had been disbarred in Boston, and although the defendant's attorney had, at the time of the trial, heard rumors |