Giegerich, J.
The action was brought to recover an installment of rent claimed to be due for the month of January, 1905, under a lease by which the plaintiff let to the defendant the premises He. 803 Broadway, in the borough of Manhattan, in which the latter carried on its banking business. The term of the lease was live years from May 1, 1902, and the yearly rental was $9,000, payable in monthly installments of $750.
The respondent calls attention to the fact that it is not alone the amount'of $750 sued for that is involved, but also the right to collect the subsequently accruing rent for the balance of the term, amounting to over $20,000.
A few 'days before the action was tried an amended answer was served which for the first time set up the defense that the defendant was not authorized by the comptroller of the currency to commence the business of banking until the 2d day of June, 1902, and that the lease set forth in the complaint was made and executed by the plaintiff with certain persons purporting to act on behalf of the defendant [510]*510before the date of the latter’s organization, and before it had any corporate existence, and_ before it had any right to commence the business of banking, and that such lease was consequently void.
Upon becoming apprised of this defense the plaintiff’s attorney made inquiry to ascertain when the lease was executed and delivered, and was informed that it was delivered on the 19th day of June, 1902, as appeared by the plaintiff’s records.
Upon tire trial the defendant’s attorney testified that the ' lease was signed on May twenty-seventh, and on the same date was handed to John W. Wooten to be delivered to the plaintiff. Wooten testified that he was at the time of the transaction the attorney for the defendant and that he delivered the lease to one Easter, who represented the plaintiff company. Wooten did not profess to recollect the date when the lease was executed or when he delivered it, but it was fairly to be inferred from his testimony that such date was May 27, 1902. That the bank was not authorized to commence the regular transaction of business until June 2, 1902, is undisputed.
At the close of the case each side moved for the direction of a verdict, whereupon the court, by consent' of both parties, discharged the jury and reserved its decision on the motions and subsequently rendered a decision in the form of findings of fact and conclusions of law in favor of the defendant, finding, among other things, that the lease in question was entered into between the plaintiff and the defendant on the 27th day of May, 1902, and was delivered to and accepted and retained by the plaintiff on that date, and also finding that the defendant was not authorized to commence business until the 2d day of June, 1902. Judgment was accordingly directed and entered in favor of the defendant. • An appeal was taken to this court, where the judgment was affirmed by an order dated May 26, 1905. On July 19, 1905, the case was carried by a writ of error to the Supreme Court of the United States, where it* was pending at the time this motion for a new trial was made in the City Court on the 23d day of October, 1906.
[511]*511From the moving papers it appeared that in September, 1906, the plaintiff’s attorney for the first time" learned of certain additional evidence that the lease was not signed by the defendant, nor delivered to the plaintiff, prior to June 2, 1902, hut subsequent to .that date. This information he first obtained from one Gandy, who stated to him that one Carraway, formerly cashier of the defendant, but now residing in the State of Mississippi, had informed him (Gandy) that the lease had been signed and delivered after June 2, 1902, and not before.
The plaintiff’s attorney endeavored to obtain an affidavit from Carraway and communicated with him by telegraph, but Carraway refused to voluntarily make an affidavit.
After receiving the above information the plaintiff’s attorney also caused inquiry 'to be made of John W. Wooten, who made an affidavit that, after careful consideration of the facts, he now recalls that it was after June second that he handed the lease to Mr. Easter, the plaintiff’s employee, and not before that date, as might be inferred from his testimony given at the trial.
In Gandy’s affidavit he states that Carraway told him •that he (Carraway) was positive that the lease .was not signed by him until after June 2, 1902, and that he is positive of the fact because he was well acquainted with the provision of law forbidding national banks to commence business until authorized by the comptroller, of the currency to do so,, and further he remembered delaying the execution of the lease because he desired to obtain the account of the plaintiff and delayed signing the lease for that reason also. ■
The testimony above outlined is manifestly of such a character that it would, in all probability, turn the scale in the plaintiff’s favor in the event of a second trial; because it must be borne in mind that the only evidence as to the time when the lease was delivered was that of the witness Wooten, who testified, not to a positive date? but to an event, the date of which was fixed by other witnesses, and who, furthermore, now claims to recall the fact that such delivery was made by him after June 2, 1902. The fact that the affidavit of the proposed witness Carraway is not presented is not, as [512]*512the appellant argues, fatal to this application. It appears that, although Carraway was willing to tell Gandy the facts, he was,*nevertheless, unwilling to furnish an affidavit for use upon the motion. This unwillingness of the witness to make an affidavit, and the fact that he is out of the jurisdiction of the court, constituted a sufficient excuse for the failure to produce his affidavit upon the motion. The rule is not an absolute one that the affidavit of the proposed witness must be furnished upon a motion for a new trial. It is enough if it is shown that such affidavit cannot be obtained. Cheever v. British American Ins. Co., 86 App. Div. 331, affd. in 180 N. Y. 551"; Matter of Cohen, 84 Hun, 586, and authorities there cited,
Some of the inferences sought to be drawn against the plaintiff’s case are rebutted by other facts which should be taken in connection therewith.
The proposed witness Easter was in court at the trial, it is true, and he was connected with the plaintiff and was not called as a witness. But the usual inference that his testimony would have been adverse to the plaintiff cannot obtain, because it is shown that upon the trial, and immediately after the defendant’s evidence was put in, he was asked by the plaintiff’s attorney what he knew as to the date of the delivery of the lease, and replied that he could give ho information and had "no recollection. In. his affidavit on this motion he states that recently, after conversing with O’Neale about his efforts to get the lease in June, his memory was refreshed and he was able to state positively that the lease was not handed.to him prior to June second, and that he will so testify at the trial.
So, too, with reference to the memorandum book, mentioned by the plaintiff’s witness McOreery, but not produced. No inference unfavorable to the plaintiff should be drawn from the fact of such nonproduction. The witness stated on the trial that he had not brought the book because he supposed his own testimony was to be taken on the point. No effort was made to suppress or withhold that evidence, however, because, some time after the trial, when the plaintiff moved to amend its complaint, it also moved to reopen the [513]*513case for the purpose of placing in evidence the entry in the book mentioned.
As to the testimony of this witness that he had physical custody of the lease from some time in May, he states in his affidavit, used on this motion, that the reference he made in his testimony to copies of the lease was not to signed copies but to'drafts which had been prepared and submitted between the parties.
With respect 'to the alterations appearing in the photographic copy of the acknowledgment of the lease produced by the plaintiff," conceding that such alterations were of the kind claimed, viz., a change from May twenty-seventh to June twenty-seventh, I am unable to perceive in this fact any corroboration of the testimony that the lease was executed and delivered on the former date. , The acknowledgment referred to is in the form of an affidavit made by Andrew B. McCreery, as secretary of the plaintiff corporation, the date of the jurat being June twenty-seventh. There is no alteration whatever in the jurat, and its accuracy is not questioned. It must, therefore, be accepted and established that the acknowledgment by the plaintiff company was made on June twenty-seventh. In passing it might be mentioned that the other acknowledgment of the same instrument, made by John Carraway, as cashier of the defendant bank, and as subscribing witness to the execution of the lease by the bank through its president, is dated June nineteenth, and the jurat, by the same notary, Thomas W. Folsom, who also took the affidavit of Andrew B. MeOreery just referred to, is dated June nineteenth. The lease itself in its body is dated May first.
From these circumstances my mind receives no light on the real question in issue, which is: When was the lease signed by the defendant bank and delivered to the plaintiff ?
Considering the lease alone, apart from any testimony, if any inference at all is to be drawn, it would appear that the defendant bank signed and acknowledged the lease on June nineteenth, and the plaintiff company signed and acknowledged it on June twenty-seventh, and that the date May [514]*514twenty-seventh, if it ever appeared in the instrument at all, was inserted in anticipation of an act expected to be done on that day, but apparently not in reality done until a later time. But it is unnecessary to inquire what significance that date might have had, because no such date ever appeared in the acknowledgment.' An inspection of the photographic copy shows that the word “ twentieth ” was changed to “ twenty ” and the word “ seventh ” added, thus changing the date from ' the “ twentieth day of May,” as it originally stood, to the “ twenty-seventh day of June,” as it afterward stood.
How, when and why these alterations, with others, were made are matters that might well be and ought to be explained upon a new trial.
Reference is made in the appellant’s brief to the character of Wooten and Carraway, the former being now in State’s prison, and the latter having been convicted of certifying checks in violation of the banking laws. It is with the character of the latter that we are chiefly concerned upon this motion, because it is in his testimony chiefly that the ground for a new trial is found. He was the cashier of the defendant bank and, apparently, as such, made’the certificate referred to. The view of his offense, taken by the Federal judge before whom he pleaded guilty, is indicated by the fact that no sentence was imposed. It was a matter commented upon as one of common knowledge at the time of his trial and conviction that the offense of over certification of checks in anticipation of deposits to be made later in the day was a frequent one among cashiers, and many defended the practice on the ground that it was necessary to the conduct of business.
At any rate, the offense was not of such a character as to stamp the offender as one whose testimony is unworthy of credit. It is true that, on such a motion as this, the character of the proposed witnesses is to be taken into account (Hagen v. New York Central & Hudson River R. R., 100 App. Div. 218) ; but it is only one of the many things to be considered. Some of the differences between that case and this show the desirability of a new trial in this instance.
There the case had been tried five times and had been [515]*515five times before a jury. Every opportunity had been afforded again and again to produce all the evidence and have it passed upon by a jury. In this case,. the jury was discharged without passing upon any of the issues, the evidence being so meagre and of such a character that the question was treated by both sides as one of law. It is manifest that, upon a new trial, there will be many questions of fact presented on very conflicting testimony, on which the verdict of. a jury should be had.
As was said in Barrett v. Third Avenue R. R. Co., 45 N. Y. 628, 632. “ Motions to set aside verdicts as contrary to evidence, as well as motions for a new trial upon the ground of newly-discovered evidence, are not governed by any well-defined rules, but depend in a great degree upon the particular circumstances of each case. They are addressed to the sound discretion of the court, and whether they should be granted or refused involves the inquiry whether substantial justice has - been done, the court having in view solely the attainment of that end.”
Upon such application, it is possible always to cite many authorities on either side of the proposition, owing to the similarity of special features. But all the circumstances of each case must be taken into consideration in disposing of each case as it arises; and, so doing in this instance, I am of the opinion that the ends of justice will be promoted by a new trial.
The fact that the newly discovered evidence was cumulative is not a ground, under the more recent authorities, for denying the motion. As stated by Judge Van Brunt in Keister v. Rankin, 34 App. Div. 288, 291: “ The rule to be applied to newly discovered evidence, whether cumulative or not, is: ‘ Is it of such a character that it is likely to produce a different result upon a new trial? ’ ” See also Vollkommer v. Nassau Electric R. Co., 23 App. Div. 88; Hess v. Sloane, 47 id. 585.
The newly discovered evidence in this case, in my judgment, meets the requirement thus laid down.
Neither do I think that it was incumbent upon the plaintiff’s- attorney to plead surprise and ask for „a post[516]*516ponement in order to procure his evidence. At the time of the trial he did not know that he could procure any evidence on the point. He.had made diligent efforts to do so before the trial and had failed.
Another proposition urged by the appellant is that,.where a litigant has sought the United States Supreme Court and submits his cause to its jurisdiction, he must be bound by its judgment, which is conclusive as to all matters litigated therein; and inferior courts are precluded from interfering with the judgment in any manner whatsoever and can do nothing except to carry into execution its mandate.
• In the first place, it should be observed that this is not a motion made after judgment of the Supreme Court, but during the pendency of the appeál. It is suggested in the appellant’s brief that the judgment was affirmed on the ,19th day of November, 1906, and reference is made to 203 United States Supreme Court Reports, page 584, for a report of the decision. We are able to find nothing in the record, however,- to show that the decision of the United States Supreme Court was made until after the motion was submitted to the court below and, consequently, the matter should be treated as a motion made pending the appeal in the United States Supreme Court, rather than after the decision of that appeal. But, as will be shown later, it would have made no difference, so far as the jurisdiction of the City Court of the city of Hew York was concerned, whether the motion for a new trial had been made before or after the decision of the United States Supreme Court.
The appellant cites various decisions of the Federal courts, holding that there .is no power in the courts below to grant a new trial after a decision of the case by the United States Supreme Court, such as Be Potts, 116 U. S. 263, and the cases there cited. American Soda Fountain Co. v. Sample, 136 Fed. Rep. 857; Matter of Dubuque & Pacific R. R. Co. v. Litchfield, 68 U. S. 69.
In the recent decision of that court in Ex parte Fuller, 182 U. S. 562, it was distinctly held, however, that, in actions “at law, as distinguished from actions in equity, the power of the court of original jurisdiction to grant a new [517]*517trial on the ground of newly discovered evidence continued after the. decision of the appeal by the Supreme Court. In that case, the right to a new trial was secured and governed by certain statutory provisions in force in the territory in which the court of original jurisdiction sat; and the appellant insists that the existence or nonexistence of such statutory provisions is the test of the question and that the respondent must fail unless it can point out some act expressly conferring upon the City Court of the city of New York the power- to grant new trials upon the ground of newly discovered evidence.
That such power has commonly been exercised by that court is well known. Such court, prior to the enactment of chapter 26 of the Laws of 1883, was known as the Marine Court of the city of New York; and, until the passage of the act of 1880 (chap. 245, § 1, f 47), it was expressly authorized by chapter 799 of the Laws of 1871 to grant new trials on the ground of newly discovered evidence.
In 1880, the act supplemental to the Code of Civil Procedure, consisting of chapters 14 to 22, inclusive, was enacted, which contains provisions making applicable to the Marine Court (§ 3347) certain parts of the Code of Civil Procedure, to which attention will presently be called.
Prior to the adoption of the Codes a motion for a new trial upon newly discovered evidence in the Supreme and Circuit Courts, was authorized by chapter 128, section 1 of the Laws of 1832,' which reads as follows: “ Where, in any personal action, any bill of exceptions shall be taken, demurrer to evidence put in, ease made, or notice of motion given for new trial on newly discovered evidence, and the proceedings shall not be stayed, the party in whose favor the verdict is rendered, may perfect his judgment and issue execution; but it shall nevertheless be lawful for the other party to proceed to obtain a hearing before the supreme court upon the matters in question, in -the manner hereinafter mentioned; and in case their judgment shall be in his favor, they may set aside the proceedings with the verdict, and order restitution, which may be enforced by such writs of restitution as are used in cases of reversal in error, or by [518]*518motion and attachment, according to the practice of the court in cases of attachment.”
Such provisions were re-enacted in somewhat different language in section 265 of the Code of Procedure, which has been superseded by sections 1002 and 1005 of the Code of Civil Procedure.
Section 1002 provides: “In a case, not specified in the last three sections, a motion for a new trial must, in the first instance, be heard and decided at the special term. But where it is founded upon an allegation of error, in a finding of fact, or ruling upon the law, made by the judge upon the trial, it cannot be made unless notice therefor be given before the expiration of the time within which an appeal can be taken from the judgment, and it cannot be heard • at a special term held by another judge; unless the judge, who presided at the trial, is dead, or his term of office has expired, or he is disqualified for any reason, or he specifically directs the motion to be heard before another judge. And a trial by a referee cannot be reviewed, by a motion for a new trial, founded upon such an allegation, except in a case specified in the last section.”
The three sections just referred to provide, respectively, (1) for motions for a new trial upon the judge’s minutes made upon exceptions, or because the verdict is for excessive or insufficient damages or otherwise contrary to the evidence or to the law (§ 999) ; (2) for a motion upon exceptions taken upon a jury trial and directed to be heard in the first instance by the Appellate Division (§ 1000), and (3), for a motion made in the Appellate Division upon exceptions taken in an action tried by the court or a referee (§ 1001).
Section 1005 reads as follows: “ The entry of final judgment, and the subsequent proceedings to collect or otherwise enforce it, are not stayed by an exception, the preparation or settlement of a case, or a motion for a new trial, unless an order for such stay is procured and served; and the entry, collection, or other enforcement of a judgment does not prejudice a - subsequent motion for a new trial. Where a new trial is granted, the court may direct and enforce restitution as where a judgment is reversed upon appeal.”
[519]*519With the adoption of the new Code, the Legislature swept away the act of 1832 by chapter 417 of the Laws of 1877, and chapter 537 of the Laws of 1881; and the act of 1871, by chapter 245, section 1, paragraph 47, of the Laws of 1880, as above noted; and, by section 3159 and subdivision 7 of section 3347 of the Code of Civil Procedure, the provisions of sections 1002 and 1005 were made applicable to the Marine Court, which was afterward changed to the City Court of the city of Hew York, as above stated.
It will thus be' seen by these various enactments that it was the intention that motions for a new trial upon the ground of newly discovered evidence should be governed by a single general provision, applicable alike to the Supreme Court, Marine Court — now the City Court of the city of New York — and County Court, instead of having separate provisions for each court.
A reading of the decisions of this State shows that the history of our law with relation to granting new trials is clearly traced back to its statutory origin in chapter 128 of the Laws of 1832. Among these may be cited Tracey v. Altmeyer, 46 N. Y. 598; Maloney v. Dows, 18 How. Pr. 27; Raphaelsky v. Lynch, 12 Abb. Pr. (N. S.) 224; Luddington v. Miller, 6 N. Y. Super. Ct. 1; affid., 53 N. Y. 643; Voisin v. Commerccial Mutual Ins. Co., 56 Hun, 215; affd., 123 N. Y. 120; Holmes v. Roper, 10 N. Y. Supp. 284; Phelps v. Delmore, 4 Misc. Rep. 508.
The last three cases cited arose since the present Code went into effect, and the Court of-Appeals, in Voisin v. Commercial Mutual Ins. Co., 123 N. Y. 120, 129, commenting upon section 1005 of the Code of Civil Procedure, said: “A note to this section by the codifiers states that it had its origin in section 1 of the Laws of 1832, and it may properly be considered a re-enactment of that section.”
So, too, a note to section 1002 by the codifiers states: “ The first sentence is part of the Code of Civil Procedure, sec. 265. The remainder of the section is declaratory of the existing practice, as expounded in * * • *; with the additional provision that exceptions etc. cannot be heard, at spe[520]*520cial term, "by any judge except the one who presided at the . trial. * * *.
“ In other respects, this section follows the Code of Procedure, in not specifying the cases where a motion for a new trial may be made, or regulating the proceedings, where the motion is made upon other grounds, than those expressly provided for. It has been often held that in all such cases, the former practice is in force. See authorities collected and classified, Voorhies’ Code, 10th ed., pp. 392, 393; and Marvin v. Marvin, 11 Abb. N. S. 102; Tracey v. Altmeyer, 46 N. Y. 598; Barrett v. Third Ave. R. R. Co., 45 N. Y. 628. A new trial on the ground of newly-discovered evidence is within the first sentence of this section.” See Throop’s Annot. Code, 1891, p. 421.
It thus appears that the power .to grant a new trial on the ground of newly discovered evidence is provided for and governed by statute; and, consequently, if the power of the court below in this case to entertain and grant the motion is to be tested by the existence or nonexistence of statutory provisions on the -subject, it must be held that such power exists.
I do not, however, think that it was the intention of the United States Supreme Court in the case cited, namely, In re Puller, supra, 182 U. S. 562, to base its decision upon such a narrow ground. The principle upon which the court proceeded, as I conceive it, is the familiar one that in actions at law the practice under the law of the various States will be recognized, whereas in actions in equity the Federal courts have their own system .of practice which they adhere to, irrespective of the system of the State in which the action originates. On this theory the United States Supreme Court would recognize the power of the City Court of the city of New York to entertain and grant the motion under consideration. The action is one at law, and the power of the latter court in the premises is one dependent upon and governed by our statutes and methods of practice. In this, connection it ought to be added that the pendency of an appeal in a higher court in this State, under our own decisions, would not have deprived the City Court of the city of [521]*521New York of its jurisdiction to grant this motion, it being the law of this State that the pendency of an appeal is no bar to a motion for a new trial op. the ground of newly discovered evidence. Henry v. Allen, 147 N. Y. 346. See also Smith, v. Lidgerwood Mfg. Co., 60 App. Div. 467; Schmidt v. Cohn, 12 Daly, 134; and Vernier v. Knauth, 7 App. Div. 57.
My conclusion is that the court below had power to entertain the motion and that its discretion in granting the same was well exercised.
The order should, therefore, be affirmed, with ten dollars costs and disbursements.
Gildersleeve, J., concurs.