DWIGHT, P. J. There were two mortgages made by the defendant Ludwig to the plaintiff on several premises on Colvin street, in the city of Rochester. The foreclosure of the first mortgage produced a surplus of $575.15; of the second a surplus of $540.15. The controversy here is between the two defendants Sullivan and Foley in respect to the priority of their respective liens, both having been made defendants, as lienors, subsequent to the plaintiff. The referee to whom the matters in difference in this proceeding were referred found and reported that the defendant Sullivan had liens by virtue of two mortgages on the premises in question to the amount of $1,286.50, which were prior and superior to the liens of the defendant Foley. The county court modified the report by striking out a single item of the defendant Sullivan's claim, (which, however, did not reduce that claim below the total amount of the surplus moneys in hand,) confirmed the report as so modified, and ordered the whole amount of surplus moneys, after providing for the expense of the proceeding, to be paid to the defendant Sullivan. It is from that order in each action that this appeal is taken.

The liens of the defendant Sullivan were, by virtue of two mortgages of $500 each, executed by the defendant Ludwig to him, on the same parcels of land, respectively, as those covered by the plaintiff's mortgages. They were executed, respectively, on the 10th and 11th days of October, 1890, and were duly recorded; the former on the 11th and the latter on the 13th day of the same month. They were given as general security for whatever sums might be or become due from Mrs. Ludwig to Mr. Sullivan. The liens of the defendant Foley were for materials sold by him to Mrs. Ludwig, and employed by her in the erection of buildings on the same lots, to the amount of $300 on each lot. His notices of lien were filed on the 16th day of October, 1890. The defendants Sullivan and Foley filed the only notices of claim to the surplus moneys in question, and were the only parties represented on the reference herein. The indebtedness of Mrs. Ludwig to the defendant Sullivan arose by way of advances made by him to her or for her benefit, in connection with building operations other than those which gave rise to Foley's mechanics' liens. She had procured loans from two loan associations in Rochester to the net amount of $4,270.75 on lots other than those covered by the plaintiff's and Sullivan's mortgages. Mr. Sullivan was the attorney for both of these associations, and the money loaned by them was put into his hands, to be advanced to Mrs. Ludwig as the buildings on the lots covered by their mortgages should progress to completion. On the 13th day of October, 1890, the entire net avails of these loans had been thus advanced to and for Mrs. Ludwig, and, in addition thereto, the sum of $390.50 from Mr. Sullivan's own funds; and on and before the 24th day of November he had made further advances to the amount of $100, under an express agreement of Foley that it should have precedence as a lien, under the Sullivan mortgage, to the mechanic's lien of Foley. This made the sum of $490.50 for

which the lien of Sullivan's mortgage was unquestionably superior to that of Foley under his notice as a material man.

The sole question in the case relates to the effect of certain orders which were drawn by Mrs. Ludwig on the funds in Sullivan's hands before the time when the liens of Foley attached, though not paid until after that time. The facts bearing upon this question are that on the 24th day of June, 1890, Mrs. Ludwig drew on Mr. Sullivan, in favor of a firm of lumber dealers, an order for the payment of $468.50, to be charged against the avails of the loan of the Monroe Avenue Association; and on the 23d day of August another order in favor of the defendant Foley himself for $537, payable out of the fund arising from the loan of the Park Avenue Association. She also drew an order in favor of a firm known as Vogel & Binder, for $275, which was in general terms, and not payable out of any particular fund. Sullivan paid all three of these orders at dates varying from May to August, 1891. The referee classed the Vogel & Binder order with the other two, and gave to it the same effect in determining the amount of Sullivan's lien. The county judge, on the other hand, distinguished it from the others by the fact that it was not drawn against a particular fund. The question need not be discussed here, because to exIclude the third order still leaves the amount paid by Sullivan in excess both of the surplus moneys upon which he asserts a lien and of the two mortgages upon which his lien is based. Upon these facts we concur with the learned county court in the conclusion that the defendant Sullivan was entitled to a lien in preference to that of the defendant Foley to the full extent of the two mortgages held by the former. The ground of this conclusion, as already foreshadowed, is that each of the two orders first mentioned, being drawn upon a particular fund named therein, had the effect of an assignment pro tanto of that fund, and bound it in the hands of the drawee from the date of the presentation or notice of such assignment, (Brill v. Tuttle, 81 N. Y. 454; Lauer v. Dunn, 52 Hun, 191, 5 N. Y. Supp. 161; Id., 115 N. Y. 405, 22 N. E. Rep. 270;) that such was the case whether the fund was in the hands of the drawee at the time of notice of the order or came into his hands thereafter; that in either case the drawee became pri marily liable to the payee for the amount of the order as in the case of acceptance; that it is immaterial at what time the order was actually paid, and that the drawee is entitled to maintain his lien by virtue of any security he holds therefor from the date when the indebtedness thus becomes his own. These propositions seem to result necessarily from the doctrine of the cases cited, and they lead to an affirmance of the order appealed from. Order of the county court of Monroe county in each case appealed from affirmed, with costs. All concur.

SHUTE V. JONES.

(Supreme Court, Special Term, Rensselaer County. July 27, 1893.)

NEW TRIAL-CUMULATIVE EVIDENCE.

Newly-discovered evidence that defendant's wagon had a broken shaft on the day after plaintiff claimed he was run into by defendant, and that defendant admitted that he ran into plaintiff, would be but cumulative to plaintiff's direct testimony that defendant ran into him.

Plain

Action by Luther Shute against Frederick W. Jones for damages from a collision on a highway. Judgment for defendant. tiff moves for a new trial on newly-discovered evidence.

Andrews & Longley, for plaintiff.
J. Rider Cady, for defendant.

Denied.

FURSMAN, J. This is a motion for a new trial on the ground of newly-discovered evidence. The rules governing such applications are very well settled, and are clearly and accurately stated in Roberts v. Bank, (Sup.) 14 N. Y. Supp. 432, where it is said:

"To constitute a case for a new trial on that ground it must appear that the evidence has been discovered since the trial; that it could not have been obtained upon the former trial by exercise of reasonable diligence; that the evidence is material to an issue involving the merits of the case, is not cumulative, and is so decisive in its character that there is a reasonable certainty that on another trial it would change the result."

An examination of the affidavits read on this motion fails to satisfy me that a new trial should be ordered. The action is brought to recover damages for injuries to the plaintiff's wagon and harness, occasioned by an alleged collision on the highway, claimed to have been caused by the negligence of the defendant, and for a physician's bill paid by plaintiff in consequence of injuries received by his wife at the same time. On the trial the plaintiff was a witness, and gave a detailed account of the occurrence. His wife was not called. It was asserted that she was ill, and unable to attend court, but no application for a postponement of the trial for that reason was made. The plaintiff now produces the affidavits of various persons that defendant was intoxicated, and driving fast, at or immediately before the accident; but evidence was given by the plaintiff to the same effect at the trial, and this is therefore clearly cumulative. Affidavits of other persons are produced to the effect that defendant's wagon was seen the next day to have a broken thill, and that to at least two persons he admitted having "run into" the plaintiff. This evidence is also of the same kind as that given at the trial, although differing from it in degree. The plaintiff there testified positively that he was run into, and that it was the defendant who did it. To prove the defendant's wagon was broken, and that he had admitted that he had been in collision with plaintiff, would be simply giving additional evidence tending to prove the same thing. This is the very definition of cumulative evidence. Cumulative evidence is "that which goes to prove what has already

been established by other evidence," (Bouv. Law Dict.,) and so whatever tends to prove the same point to which other evidence is offered is, in law, cumulative. Nor am I satisfied that with proper diligence the alleged newly-discovered evidence could not have been ascertained before the trial. It is true that the plaintiff says that from the time of the accident down to the trial he "made continued, diligent, and repeated efforts to find some person who could corroborate deponent's testimony as to how his injuries were received," but he does not point out a single effort put forth, nor any inquiry made by him, to that end. The affiants were the neighbors of both parties, and well acquainted with both, and it would seem that a very small effort must have discovered any knowledge they possessed concerning the accident, and concerning any admissions the defendant may have made, especially as the action had already been tried in a justice's court, and neighborhood attention presumably somewhat thereby attracted to the circumstances of the occurrence. Moreover, the affidavits on the part of the plaintiff are fairly met and contradicted or explained and neutralized by those produced by defendant, (Chapman v. O'Brien, 39 N. Y. Super. Ct. 244,) some of them being by the same persons. I cannot say that I think it reasonably certain that a new trial would produce a different result. Finally, the most that can be said, as it seems to me, is that the plaintiff has found evidence in addition to that he had upon the trial by which he could make out a stronger case than he then did, but "there is hardly a case tried but that one party or the other after the trial discovers evidence, unknown before, by which on a new trial such party could make a stronger case than on the first. If in such cases a new trial was granted, litigation would never cease. Ordinarily, when a case has been tried, and a verdict rendered, a new trial should only be granted in unusual cases, when the newly-discovered evidence would in all probability produce a different result, and where it clearly is not cumulative." Jackson v. Town of Ft. Covington, 15 N. Y. Supp. 793, at 795, (opinion of Putnam, J., at special term, adopted by general term, third department.) This is not such a case. The motion is de

nied, with costs.

(71 Hun, 114.)

O'NEILL et al. v. BROOKLYN HEIGHTS R. CO., (two cases.) (Supreme Court, General Term, Second Department. July 28, 1893.) DAMAGES-INJURIES TO HORSE-EVIDENCE.

In an action against a railroad company for injuries to a horse, the evidence of plaintiff and his brother, on which the extent of the injury almost entirely depended, if credited, called for substantial damages; but it appeared that, within a few days after the injury, plaintiff applied to a veterinarian to pronounce the horse sound, and the physician did not discover injuries to the extent claimed by plaintiff. Held, that a verdict for nominal damages should not be disturbed. Dykman, J., dissenting.

Appeal from circuit court, Kings county.

Two actions, one by James O'Niell against the Brooklyn Heights Railroad Company to recover damages for injuries to a horse caused by defendant's negligence, and another by Edward O'Niell against the same defendant for personal injuries caused by defendant's negligence, both the result of the same accident, and tried together. From a judgment entered on the verdict of a jury in favor of plaintiff for nominal damages only, and from an order denying a motion for a new trial on the minutes, plaintiff in each case appeals. Affirmed.

Argued before BARNARD, P. J., and DYKMAN, J.

James P. Niemann, for appellants.
Henry D. Hotchkiss, for respondent.

BARNARD, P. J. The extent of the injury to the horse alleged to have been caused by the accident depended very much, if not entirely, on the testimony of the plaintiff and his brother Edward, who was riding the horse when he was injured. It is true that these witnesses, if credited, would call for a substantial verdict, but the case shows that the plaintiff applied to a veterinary physician to pronounce the horse sound within a few days after the accident. The plaintiff says that he was requested to have this examination made by the physician at the request of one NcCoy, who knew of the injury the horse sustained, and wanted to buy him. The doctor did not discover the extent of the injury as claimed by the plaintiff. He said the horse was lame, but he discovered no dislocated hip. The jury had abundant reason for placing the injury at a nominal sum in case they discredited these two witnesses. The judgment should be affirmed, with costs.

The

DYKMAN, J., (dissenting.) Both of these actions are based upon negligence, and, as the cause of action grew out of the same accident, they were both tried together at the circuit, before a jury, and both plaintiffs recovered a verdict for six cents damages. Both have appealed from the judgment entered upon the verdict and from the order denying a motion for a new trial upon the minutes of the court. The facts are substantially these: plaintiffs are brothers. John was in the employ of his brother James, who was the owner of a horse. While John was riding the horse down Montague street, in the city of Brooklyn, it was struck by one of the cable cars of the defendant, and thrown down, and John went off. Both horse and man received injuries, and these actions are for the recovery of damages resulting therefrom. As we have stated, the verdict was in favor of the plaintiffs in both cases, and so it must be assumed that the jury found all the facts in favor of the plaintiffs, and the question is whether we should interfere with the judgment by reason of the inadequacy of the damages. In relation to the plaintiff Edward, the testimony did not show his injuries to be severe, and there was evidence from which the jury might find them to be slight. In his