In re the Judicial Settlement of Accounts of Rose

Burr, J.: The incomplete character of the record in this case makes the determination of the facts difficult. It would seem that in this proceeding, which was instituted before the Surrogate’s Court of Suffolk'county for the judicial settlement of the accounts of the administrators of the estate of D. Harold Rose, Annie E. Rose, one of such administrators, sought to prove a claim in her behalf arising out of certain notes held by her, and was unsuccessful. Whether a decree has been entered rejecting said claim and judicially settling said accounts, does not appear. It is not entirely clear whether the order appealed from is an order granting a new trial on the ground of newly-discovered evidence, or only an order permitting the giving of further [264] testimony in a proceeding still pending before the surrogate and undetermined. If it were the latter, we might hesitate to interfere with his order, resting so largely in his discretion. But the notice of motion is for a rehearing “ on the ground of newly discovered evidence.” The order which is appealed from directs that a new hearing may be had before the surrogate “ on the question of interest payments and indorsements on certain promissory notes held by said Annie E. Rose against decedent, on the ground of newly discovered evidence on behalf of said Annie E. Rose.” The notice of appeal refers to the order as one “granting to Annie E. Rose a new hearing on the question of interest payments and indorsements on certain promissory notes, held by the said Annie E. Rose against decedent on the ground of newly discovered evidence,” and the briefs of both appellants and respondent refer to thé order as an order “granting a new trial on the ground of newly discovered evidence.” If we treat it as such an order, it cannot be sustained for various reasons. The Surrogate’s Court has power to “grant a new trial or a new hearing for fraud, newly discovered evidence, clerical error, or other sufficient cause.” (Code Civ. Proc. § 2481, subd. 6.) “ The powers, conferred by this subdivision, must be exercised only in a like case and in the same manner, as a court of record and of general jurisdiction exercises the same powers.” (Id.) It is the general rule that a motion for a new trial upon the ground of newly-discovered evidence should be made upon a case containing the evidence as well as upon affidavits. (Code Civ. Proc. § 997; Bridenbecker v. Bridenbecker, 75 App. Div. 6; Hanor v. Housel, 128 id. 801; Pease v. Pennsylvania R. R. Co., 137 id. 458.) No case has been made and settled as required by the rules. (General Rules of Practice, rules 32-34.) Notwithstanding this, if the parties consent that the motion may be heard upon the pleadings and affidavits without a case, the court has power to entertain it. (Russell v. Randall, 123 N. Y. 436; McIver v. Hallen, 50 App. Div. 441; Rosenthal v. Bell Realty Co., 53 Misc. Rep. 265.) In this case the notice of claim is not made a part of the record, and" referring to the motion papers recited in the order appealed from we are left in doubt as to the nature of the administrators’ claim. It is suggested [265] in one of the moving affidavits that the claim is “for the recovery or allowance of three notes with interest thereon against the estate of said decedent.” We are left in ignorance as to the date of the notes,' the amount thereof, the periods within which they mature, whether the notes are -those of decedent or whether it is claimed that he became liable thereon as indorser or guarantor. Apparently the decision of the surrogate rejecting the claim was based upon the ground that the notes were barred by the Statute of Limitations. It is essential to the granting of a new trial on the ground of newly-discovered evidence that it shall appear that the additional evidence was not known to the party at the time of the previous trial, and could not with due diligence have been ascertained (Matter of McManus, 66 App. Div. 53; Bridenbecker v. Bridenbecker, supra ; McIver v. Hallen, supra), and that its character is such that if received it would probably have changed the result. (Glassford v. Lewis, 82 Hun, 46.) In each respect the affidavit's are insufficient. The evidence alleged to have been newly discovered is that of claimant’s son,' Clarence J. Squires, and consists of alleged admissions of decedent. Such evidence, given under the circumstances here disclosed, may well be viewed with suspicion. But although the said Squires states in his affidavit that he saw decedent, his stepfather, pay money to his mother, the claimant, and heard him say that it was for interest due on his notes which she had against him, there is nothing to connect this transaction or these statements with the notes here in controversy. It may have referred to other notes which she held, and which have since been paid. It also appears that said Squires was present in court in company with his mother on the previous hearing, and, for aught that appears, could then have been called as a witness and testified. It would seem from the moving papers that claimant failed to realize the importance of his testimony on that occasion, rather than that she was ignorant of it. (McIver v. Hallen, supra; Bridenbecker v. Bridenbecker, supra; Matter of McManus, supra.) It follows that the order appealed from must be reversed, with costs to the appellants, and the motion denied, with costs. W e are reluctant to foreclose the claimant of her rights if she [266] can establish them, and the decision herein will -be without prejudice to a new application in her behalf upon proper papers. Jenks, P. J., Hirschberg, Thomas and Carr, JJ., concurred. Order of the Surrogate’s Court of Suffolk county reversed, with costs to the appellants, and motion denied, with costs, without prejudice to a new application upon proper papers.