Hardin, P. J.
Having carefully examined the evidence found in the appeal-book relating to the merits of the controversy had before the referee, we find that the evidence is very conflicting. Defendants, upon the trial before the referee, resisted the claim of the plaintiff on the following grounds: First, that the note was a forgery; second, that, if the note was as a matter of fact signed by Job Holmes, his signature was procured under duress and fraud; third, that the note was void, and was without consideration.
1. By the evidence it appears that Job Holmes died July 7,1887, at about the age of 70 years; that he had been afflicted with paralysis, and for some years before his death was quite infirm. He died intestate, leaving him surviving [286] his only child, Eliza Roper, who was his only heir; his wife had died several years before ins death. At the time of his death he owned real estate worth about $5,000, and he left about $2,800 in personal estate. He had for a number of years been in partnership with his brother Rufus Holmes, who is the father of the plaintiff. Several settlements had been had between the intestate and his brother Rufus. Ho business transactions of any significance had ever taken place between the plaintiff and the intestate. The plaintiff was am invalid to some extent, and possessed of no property. The body of the note was in the plaintiff’s hand-writing. Ho witness was produced upon the trial who saw the intestate sign the same. Plaintiff produced several witnesses, who gave testimony tending to support the claim made by the plaintiff. Sev- • eral witnesses expressed the opinion that the signature upon the note was that of the intestate, and some of the witnesses made comparison of the signature upon the note with signatures upon other papers confessedly executed by the intestate. To confront the testimony of the plaintiff, several witnesses were called on the part,of the defendants, who gave testimony tending to indicate that the signature to the note was not the genuine signature of the intestate, and that the note was without consideration. Among the witnesses called by the defendants was Mr. Ames, “the pen artist,” who examined the signature carefully, and compared the same with the signature upon papers confessedly genuine, and he pointed out the dissimilarities in the features of the signature in question with those upon papers confessedly executed by the intestate, and he concluded his testimony in language following: “Taking all these into consideration, to my mind it presents an array of facts that makes it impossible that, at that time, Mr. Holmes made that signature. I do not believe it is his.” While the referee was called upon to determine whether or not the signature was genuine upon the conflicting evidence, and it may not be said that his finding is against the weight of evidence, still a careful perusal of all the evidence found in the appeal-book has left some doubt upon our minds as to whether or not, if the question were now an original one, we should reach the same conclusion stated by the referee. However, under all the circum-' stances, with due consideration of all the evidence found in the appeal-book, giving to the report of the referee such influence as it justly should receive in reviewing the evidence, we do not feel at liberty to reverse the judgment on the ground that the report of the referee is against the preponderance of evidence.
2. We have looked at the exceptions taken during the trial, and we find n© error presented by them calling for a disturbance of the report of the referee. It therefore follows that the appeal from the judgment and the order of confirmation of the same must be permitted to stand.
3. We are of the opinion that the court at special term had power, upon hearing the motion for a new trial on newly-discovered evidence, to grant the same, notwithstanding a judgment had been entered. Code Civil Proc. § 1005; Tracey v. Altmyer, 46 N. Y. 598. In Fisher v. Corwin, 35 Hun, 253, the motion for a new trial was held properly refused because of the loches of the moving party. In the opinion in that case it is stated, “more than four years elapsed from the time of the entry of the judgment to the making of this motion,” and upon this ground the decision seems to have been placed. Ho reference is made in the case to Tracey v. Altmyer, supra, or to section 1005 of the Code of Civil Procedure. In the case in hand the motion for a new trial seems to have been made with considerable celerity. Under the established practice, it could not be heard except upon a case prepared and settled, containing all the evidence given upon the trial. People v. Superior Court, 10 Wend. 286; Sproul v. Insurance Co., 1 Lans. 71; Young v. Cuddy, 23 Hun, 250.
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Hardin, P. J.
Having carefully examined the evidence found in the appeal-book relating to the merits of the controversy had before the referee, we find that the evidence is very conflicting. Defendants, upon the trial before the referee, resisted the claim of the plaintiff on the following grounds: First, that the note was a forgery; second, that, if the note was as a matter of fact signed by Job Holmes, his signature was procured under duress and fraud; third, that the note was void, and was without consideration.
1. By the evidence it appears that Job Holmes died July 7,1887, at about the age of 70 years; that he had been afflicted with paralysis, and for some years before his death was quite infirm. He died intestate, leaving him surviving [286] his only child, Eliza Roper, who was his only heir; his wife had died several years before ins death. At the time of his death he owned real estate worth about $5,000, and he left about $2,800 in personal estate. He had for a number of years been in partnership with his brother Rufus Holmes, who is the father of the plaintiff. Several settlements had been had between the intestate and his brother Rufus. Ho business transactions of any significance had ever taken place between the plaintiff and the intestate. The plaintiff was am invalid to some extent, and possessed of no property. The body of the note was in the plaintiff’s hand-writing. Ho witness was produced upon the trial who saw the intestate sign the same. Plaintiff produced several witnesses, who gave testimony tending to support the claim made by the plaintiff. Sev- • eral witnesses expressed the opinion that the signature upon the note was that of the intestate, and some of the witnesses made comparison of the signature upon the note with signatures upon other papers confessedly executed by the intestate. To confront the testimony of the plaintiff, several witnesses were called on the part,of the defendants, who gave testimony tending to indicate that the signature to the note was not the genuine signature of the intestate, and that the note was without consideration. Among the witnesses called by the defendants was Mr. Ames, “the pen artist,” who examined the signature carefully, and compared the same with the signature upon papers confessedly genuine, and he pointed out the dissimilarities in the features of the signature in question with those upon papers confessedly executed by the intestate, and he concluded his testimony in language following: “Taking all these into consideration, to my mind it presents an array of facts that makes it impossible that, at that time, Mr. Holmes made that signature. I do not believe it is his.” While the referee was called upon to determine whether or not the signature was genuine upon the conflicting evidence, and it may not be said that his finding is against the weight of evidence, still a careful perusal of all the evidence found in the appeal-book has left some doubt upon our minds as to whether or not, if the question were now an original one, we should reach the same conclusion stated by the referee. However, under all the circum-' stances, with due consideration of all the evidence found in the appeal-book, giving to the report of the referee such influence as it justly should receive in reviewing the evidence, we do not feel at liberty to reverse the judgment on the ground that the report of the referee is against the preponderance of evidence.
2. We have looked at the exceptions taken during the trial, and we find n© error presented by them calling for a disturbance of the report of the referee. It therefore follows that the appeal from the judgment and the order of confirmation of the same must be permitted to stand.
3. We are of the opinion that the court at special term had power, upon hearing the motion for a new trial on newly-discovered evidence, to grant the same, notwithstanding a judgment had been entered. Code Civil Proc. § 1005; Tracey v. Altmyer, 46 N. Y. 598. In Fisher v. Corwin, 35 Hun, 253, the motion for a new trial was held properly refused because of the loches of the moving party. In the opinion in that case it is stated, “more than four years elapsed from the time of the entry of the judgment to the making of this motion,” and upon this ground the decision seems to have been placed. Ho reference is made in the case to Tracey v. Altmyer, supra, or to section 1005 of the Code of Civil Procedure. In the case in hand the motion for a new trial seems to have been made with considerable celerity. Under the established practice, it could not be heard except upon a case prepared and settled, containing all the evidence given upon the trial. People v. Superior Court, 10 Wend. 286; Sproul v. Insurance Co., 1 Lans. 71; Young v. Cuddy, 23 Hun, 250.
The case was settled and filed on the 6th of September, and the notice at motion bears date September 21, and it was served on the 23d of September,, [287]*2871889, and the motion was heard on the 1st of October, 1889. We think the defendants are not chargeable with loches in making the motion. We must therefore proceed to consider the merits of the motion. It was made upon 18 affidavits. Several of the affiants take back or modify or explain the statements found in their affidavits read in support of the motion. However, the statements of several of the affiants are not disputed, except by the affidavit of the plaintiff. Starkweather states in his affidavit “that, in the fall of the year 1885, he was in the village of Candor one day, and sitting on the stoop of the Allen Hotel, when he saw Job Holmes and bis nephew, Jerome D. Holmes, coming down the walk towards him. Job Holmes came up and shook hands with deponent, and sat down near him; his nephew, Jerome, sitting down near him, and within hearing distance. Job Holmes then said to deponent: « Charles, how are you getting along now days?’ I said, ‘First rate.’ He then said: ‘Ton are getting out of debt; you have a good farm and a good team.’ I then replied: ‘ I calculate to keep so; this trading business does not pay.’ He then said: ‘ I have quit trading and doing business. I have got enough to keep me as long as I live, if I take care of it. I don’t care to have any more. I have only one child, and she will get what I have when I am done with it. I owe no man a dollar in this world, and no man holds any papers against me. I haven’t but a little while to live, anyhow, and I propose to keep my business in a snug shape.’ * * * Deponent further says that said Jerome did not dissent from any statement made by his uncle in his hearing and presence.” Peter Herdic states a similar conversation, in substance, to that detailed by Starkweather, and adds: “This conversation was held on the hotel stoop in Candor, in the presence and hearing of Jerome D. Holmes. ” Edward J. Wright states that on the 16th day of September, 1885, he heard a conversation in which Job Holmes stated that “he was out of debt, and that no man had his name on paper, and what there was left of his property after he was through with it would go to his only heir, his daughter, and that Jerome D. Holmes was sitting a few feet distant, and in hearing distance, during the conversation, and made no dissension from what was" said.” Daniel Joy states that in May, 1885, he had a conversation with Job Holmes, in which he stated “he owed no man a dollar, and no man "had his name on a note or paper of any kind that he knew of. The above conversation took place in the presence of a young man, whom Job Holmes introduced to deponent as Eufus Holmes’ son, and whose name deponent understands to be Jerome D. Holmes.” Luther Eoper states a conversation had with Job Holmes “in the presence and hearing of Jerome D. Holmes,” in which he stated that he was “all out of debt, with the exception of a little store bill, or such a matter.” W. H. Decker states in his affidavit a conversation which he held with the plaintiff in respect to his uncle Job, in which the plaintiff communicated to the affiant that his uncle “was going to leave him a handsome present when he died; that similar statements were made to deponent at other times, and as late as the year 1886. ” William Baker details a conversation somewhat similar which he held with the plaintiff.
All these statements made would, if given in evidence, bear directly upon the vital issues passed upon at the hearing. What influence would they have in the determination of the principal questions involved in the controversy? It is not easy to determine that this newly-discovered evidence, if given upon a new trial, would surely produce a different result. We do not overlook the circumstance that the plaintiff in opposing the motion read his affidavit contradicting and explaining the statements found in the affidavits from which quotations have been made. It is not usual to determine upon conflicting affidavits an important question of fact which enters into the determination of the vital issues between litigating parties. Of course, if we were to give full credence to the affidavit of the plaintiff, little weight or force would remain in the affidavits to which we have referred. Whether the affiants affirm [288] the truth, or the plaintiff correctly states in his affidavit the facts in respect to such conversations, can better be determined after the affiants have been examined and cross-examined, and the plaintiff has been examined and cross-examined; therefore we should not indicate whether the affiants or the plaintiff are entitled to credence. In the affidavit of W. E. Roper, it appears that after the trial he discovered a paper bearing date August 9, 1883, in the house of the deceased, behind the desk, signed by Rufus Holmes, indicating a settlement of all matters between him and the intestate. The absence of that paper seems to be satisfactorily accounted for, and the finding thereof after the trial satisfactorily explained. Because of the severe conflict in the evidence given upon the trial upon the main issues, it is very difficult to say just what influence the newly-discovered evidence will have upon a fresh hearing of the issues. After some considerable reflection, and with a degree of hesitation, we have finally reached the conclusion that the rule stated in Plate Co. v. Barclay, 48 Hun, 54, should be applied to the case before us. In deciding that case, the court in the first department observed: “What the effect of the testimony of these witnesses might be upon another trial of the action cannot certainly now be determined. It presents a controverted case, in which the jury might adopt either view. There isa probability certainly that they would consider the case of the plaintiff made out rather than that the defense of the defendant was proved. And in this state of the evidence it will be a matter of propriety and justice to submit the case to the hearing and decision of another jury.” We think the rule thus stated is more satisfactory than the fuie announced in Behrens v. Bloom, 3 N. Y. Supp. 551, by a special term of the city court, to the effect that the “new evidence is not of that controlling character which carries with it the belief that its presentation at the trial would necessarily change the result. ” In the Barclay Case the court further observed: “There is certainly no justice in subjecting a person to what is really an unfounded claim, or for preventing him from maintaining an equally well-founded defense, because the evidence •discovered by him - by which that can be done may be of the same quality or description as that given upon the trial in which he has been defeated.” We are of the opinion that the motion for a new trial should prevail; the order denying the same should be reversed; and an order entered setting aside the report of the referee, and the order of confirmation and the judgment entered thereon, and directing a new trial on the payment by the defendants, within 20 days, of the costs allowed by the order and in the judgment; but, if such costs shall not be paid or tendered within that time, then the motion will be denied, and the order affirmed, with costs. Order reversed, and order of confirmation and judgment thereon set aside, and a new trial directed before another referee, on the payment by the defendant within 20 days of the costs allowed by the order and in the judgment, and costs of the appeal before notice of argument, and in default of such payment the order denying the motion for a new trial will be affirmed, with costs, and the judgment and orders affirmed, with costs.