Cummings v. The New York and Oswego Midland Railroad Co.

corporation, organized in 1866, under and pursuant to chapter 140 of the Laws of 1850. (Laws of 1850, p. 211.)

The plaintiff's claim for his own labor, and that of his team and servant, performed for a sub-contractor of the defendants, in the construction of their railroad, was made against the defendants under and by virtue of § 12 of the act under which the defendants were organized as a corporation. The important portion of that section, so far as this case is concerned, reads as follows, viz.;

"As often as any contractor for the construction of any part of a railroad which is in progress of construction, shall be indebted to any laborer, for thirty or any less number of day's labor performed in constructing said road, such laborer may give notice of such indebtedness to said company in the manner herein provided; and said company shall thereupon become liable to pay such laborer the amount so due him for such labor, and an action may be maintained against said company therefor." (Laws of 1850, p. 215).

The plaintiff gave the proper notice, and commenced his action before the justice, within the time prescribed by such act to entitle him to recover.

No objection was made in the County Court to a recovery on the ground that the labor was performed for a sub-contractor in the construction of the defendants' railroad. No such objection could have prevailed, as against any portion of the plaintiff's claim; for it was settled by the Court of Appeals, in Kent v. The N. Y. Central R. R. Co. (2 Kern., 628), that the above mentioned § 12 extends to workmen hired by parties to whom the original contractor has sublet a portion of the work.

The only material question in the case is whether the plaintiff was entitled to recover for labor performed on the defendants' railroad, by his team and servant, for a sub-contractor, who was constructing a portion of such road. And this is not an open question in this court; it was decided. adversely to the plaintiff's claim by the Court of Appeals, at the March term, 1856, in the case of Atcherson v. The Troy

Cummings v. The New York and Oswego Midland Railroad Co.

and Boston Railroad Company. That case has never been reported, but we have been furnished by Mr. Kernan, the then reporter of the Court of Appeals, with a copy of the opinions of the judges delivered in that case.

Judge JOHNSON said, in that case, when speaking of the act under which the plaintiff's claim is made, that "the design of the act was, it seems to me, to give the laborer a claim upon the company, for the amount due him from his employers for thirty days labor, performed by himself, or any number of days less than thirty. Nothing beyond this can fairly be inferred from the terms employed." He further said: "The whole object, manifestly, was to protect a class of day laborers upon works of this description, who depended mainly upon their own labor, and payments at short intervals, for a subsistence, against the failures and frauds of contractors by whom they were employed; and not those who might, for convenience or profit, employ the labor of others." And he came to the conclusion that the plaintiff, in that case, could not recover for the labor of his team or hired servant. Judge COMSTOCK said, in that case: "The statute, we think, gives the remedy only to the person who labors himself for a contractor, and confines it to the price of his own labor, or of that to which the law entitles him."

The plaintiff in that case had recovered, in the Supreme Court, not only for his own labor, but for the service of a four-horse team, driven by himself. The Supreme Court disallowed his claim for the wages of his hired servant, and the services of the team driven by such servant. The Court of Appeals modified the judgment in that case, and reduced it, so that the plaintiff only recovered for his own personal labor, the price or value of which was sixty dollars.

That case is decisive of this. It shows that the plaintiff in this case was not entitled to recover for the labor of his team or servant, but only for the labor performed by himself personally.

It follows that no error was committed on the trial of this case in the County Court, to the prejudice of the plaint t

Sproul v. The Resolute Fire Insurance Company.

and that the order of that court, denying the plaintiff's motion for a new trial, should be affirmed, with costs.

So decided.

ANDREW SPROUL, Appellant, v. THE RESOLUTE FIRE INSURANCE COMPANY, Respondent.

(GENERAL TERM, SIXTH DISTRICT, MAY, 1869.)

A new trial, on the ground of newly discovered evidence, should not be granted, when such evidence does not go to the merits, and plainly appear to be relevant to some material issue raised by the pleadings; nor when such evidence is cumulative, or only tends to contradict, on a purely circumstantial point, a witness examined on the trial; nor when circumstances show that by greater diligence on the part of the moving party, or his agent or attorney, the evidence is ordinarily discoverable previous to the trial.

Surprise of counsel at the testimony of a witness is not of itself any ground for a new trial.

Case on motion for a new trial on the grounds of surprise and newly discovered evidence criticised, per BALCOM, J.

In an action for a loss under a fire insurance policy, defendant proved at the trial, the unusual position and flaming of a lamp, fifteen days before the fire, as tending to show an attempt, by plaintiff, at that time, to set fire to the premises; a witness then explained that the position and flaming of the lamp were accidental, testifying that he was present at the time, on account of a sick child of plaintiff's, which died a day or two afterward; and defendant, the verdict being for plaintiff, moved for a new trial, on newly discovered evidence that the child, in fact, died some days before the unusual burning or flaming of the lamp refered to.— Held, that the order granting a new trial on this ground should be reversed.

APPEAL from an order granting a new trial on the grounds of surprise and newly discovered evidence. The motion was made on affidavits, and a case which was defective in several particulars. (See opinion.)

The complaint stated a cause of action on a fire insurance policy for $1,200, issued by defendant upon goods and furniture in a grocery store, in the village of Watkins, Schuyler county, and alleged that all the insured property, excepting

Sproul v. The Resolute Fire Insurance Company.

about thirty dollars worth, was destroyed by fire; and that such property was worth more than $1,200, for which sum, with interest, judgment was demanded. The answer contained denials, admitted notice of the fire and service of proofs of loss, and set up two separate defenses: 1. That the plaintiff started the fire; 2. That but very few goods were burned.

The jury rendered a verdict for plaintiff, for $1,049.76, and the defendant moved and obtained an order for a new trial on grounds which, so far as the decision on appeal is founded on them, are fully stated in the opinion. From this order plaintiff appealed.

J. McGuire, for the appellant.

R. H. Marriott and Chas. J. Folger, for the respondent.

Present-BALCOM, BOARDMAN and PARKER, JJ.

By the Court-BALCOM, P.J. Whenever a party moves for a new trial, on the ground of newly discovered evidence, he must present a case containing the evidence given on the trial, or the substance of such evidence, with the affidavits on which he relies. (See rule 34.) The evidence, or the substance of it, given on the trial, should be presented, to enable the court to determine whether the newly discovered evidence is cumulative, or material, &c. (See People ex rel. Oelricks v. Superior Court of New York City, 10 Wend., 286.) No such case has been made in this action.

The defendant endeavored to prove on the trial that the plaintiff attempted to set fire to the grocery store, in which the insured goods were situated, by means of a lamp, about fifteen days before the fire that destroyed the goods. The lamp was found flaming. The witness, Crum, gave evidence that tended to show that the situation of the lamp was accidental. He testified he was at the grocery store the evening the lamp flamed and burned unnaturally; that he was there administering comfort to the plaintiff's family, on account of

Sproul v. The Resolute Fire Insurance Company.

a sick child the plaintiff then had, that died in a day or two afterward. The family of the plaintiff lived in the same building in which his grocery was kept. The newly discovered evidence, for which a new trial has been granted, is to establish the fact that the plaintiff's child died some days prior to the unnatural burning or flaming of the lamp that endangered the building fifteen days before the fire occurred that burned the insured property.

Now, the time at which the plaintiff's child died was not material to the issue tried, or to that formed by the pleadings. Evidence to contradict Crum in respect to whether the plaintiff's child was living and sick at the time the lamp flamed, would not go to the merits of the case; and a new trial should not have been granted for newly discovered evidence that the child had died previous to the occurrence of the unnatural flaming of the lamp in the grocery. (See 10 Wend., 292.)

It is impossible to determine, from the appeal papers, whether the case contains all the evidence given on the trial respecting the flaming of the lamp. Whatever evidence there was on that question was given to create the belief that the plaintiff then attempted to burn the insured property, so that it might be regarded as a circumstance against him touching the origin of the fire that burned his goods.

I am of the opinion that the newly discovered evidence, respecting the time at which the plaintiff's child died, is too remote from the issues in the case to warrant the granting of a new trial.

The case does not show the evidence given respecting the quantity of goods burned; but it is asserted in the plaintiff's points that fourteen witnesses were examined, on the part of the defendant, as to the quantity of goods before the fire, and at the time of the fire.

I think it is clear that all the newly discovered evidence on those questions is cumulative, and furnishes no ground for granting a new trial.

The pleadings, case and affidavits, taken together, show that the fire, which the plaintiff claimed to have burned the LANSING - VOL. I.

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