the witness Creagham saw him, on the same day that his entry was dated, coming up Seneca street, the street where the plaintiffs' place of business is located, and from the direction of the plaintiffs' office; afterwards met him on the corner of Main street, and was there told by the deceased that he had got his furnace in, and had just been down and paid for it; and the defendants, for further grounds of assurance that Mr. Allen paid the plaintiffs, and that he would not have made the entry in his book of payment unless he had in fact paid the bill, show that he was a man of marked integrity, and of very exact business habits. The place where the deceased made the entry was on a page which contained only the payments made on the construction of the house and purchase of the lot, headed "Cost of House and Lot." The entries were 15 in number, and this was the eleventh, and the defendants produced receipts showing the actual payment by Mr. Allen, on the day of the date of the entry, of every sum entered on the page, excepting the one in suit; but the defendants are unable to produce any receipt for this item in question. It is claimed by the defendants that, considering the character of Mr. Allen for care and accuracy in his business, his acknowledged integrity, his taking money and leaving his home on the day of the date of the entry with the apparent object of settling his bills, his statement to the witness Creagham, the same day, that he had just been down to the defendants' place and paid the bill, his entry on or soon after returning home, on the said page of his book, of the charge of the payment, the court ought, Mr. Allen being dead, to infer and find the fact that the payment was made.

There are several difficulties in the way of making such an inference of fact. In the first place, the inference would be entirely uncertain whether he paid to one entitled to receive the money. The testimony of Creagham is of a kind recognized as not very satisfactory, for the reason that a witness is very likely to misunderstand a casual remark made in a merely friendly conversation upon an accidental meeting. While the production of receipts showing that the deceased did actually pay all the other 14 charges made by him at the dates of their entry tends to convince the mind that the intestate intended that the entries should be true statements, still, the inability of the defendants to produce a receipt for the item in question operates, perhaps, quite as forcibly to establish this entry as an exception. The testimony shows that Mr. Allen was very particular about taking receipts, which is evidenced by the production of receipts for all those items of entry except the one in suit; and the testimony of Mr. Gieb, of whom the deceased rented a house before he built the house in question for himself. Mr. Gieb says that when Mr. Allen came to him to pay his monthly rent he always came with a receipt for the payment prepared, which he brought with the money. So, therefore, assuming that the court might, from all the circumstances, lawfully deduce a finding of fact as to payment, it would be very difficult to infer satisfactorily, from the offered testimony and circumstances, the fact of such payment. If he paid, the uncertainty as to when he paid; why, contrary to his exacting habit, he omitted to take a receipt for this considerable sum; no circumstances raising a probability of a loss of the receipt; the claim of non-payment by the plaintiffs, against whose business integrity nothing is said,-all these circumstances would leave the truth of the matter so uncertain that the court could not rest satisfactorily on a finding that the intestate actually made the payment.

The defendants have the affirmative, and must satisfy the court of the fact of payment; but, if the evidence offered by the defendants would, properly received, and without objection, justify a finding of payment, there are still the insuperable difficulties in the way of the defendants that the declarations made by Mr. Allen to the witness Creagham, and the entries made by himself in his book, were objected to by the plaintiffs' counsel, and without the aid of such declaration and entry the defendants' evidence would be plainly

insufficient. It is perfectly settled by the courts, in a long series of decisions, that entries of that kind, made by Mr. Allen on a page of his book, being entries in his own favor, are not admissible as evidence. They cannot be admitted under the head of shop-keeper's charges; they were not entries against his own interests; they were not "res gesta;" and this court cannot make any new law. That the testimony of the witness Creagham, and that the entries made by Mr. Allen of his payments, are not admissible evidence in favor of the defendants is elementary, and hardly needs the citation of authorities. I will only refer to Redfield v. Stilt, 10 N. Y. St. Rep. 366; Vaughn v. Strong, 4 N. Y. Supp. 686; Tilson v. Terwilliger, 56 N. Y. 273; Lowery v. Erskine, 20 N. E. Rep. 588. The statement of Mr. Allen to the witness Creagham, and his entries, are not rendered admissible evidence by reason of his decease. Romig v. Romig, 2 Rawle, 241; Scull v. Wallace, 15 Serg. & R. 231; Hess' Appeal, 112 Pa. St. 168, 4 Atl. Rep. 340.

Third. The defendants further object that the notice of lien is invalid for want of a proper verification, and a great many cases have been cited, and supposed analogies argued, in support of the position. A verification is necessary simply because it is required by the statute, and the particular statute which demands a verification furnishes the measure of what is required. The statute of 1885, c. 342, § 4, provides that the notice of lien must be verified, "to the effect that the statements therein contained are true to the knowledge or information and belief of the person making the same." Section 25 of the statute declares: "This act is hereby declared to be a remedial statute, and is to be construed liberally to secure the beneficial interests and purposes thereof; and a substantial compliance with its several provisions shall be sufficient for the validity of the lien or liens herein before provided for, and to give jurisdiction to the courts to enforce the same." The verification appended to the notice of lien is in these words: "Leopold Schwartz, being duly sworn, says: I am one of the claimants mentioned in the foregoing notice of lien. I have read the said notice, and I know the contents thereof. The same is true of my own knowledge or information and belief." The statute says the notice shall be verified, to the effect that the "statements" therein contained are true. The affidavit does not state that the "statements" contained in the notice are true, but that he has read the notice, and knows the contents thereof, and the same is true. This language is that in professional use in the verification of pleadings, and signifies that the statements of the notice are true. When the affiant declares that the notice is true, he must be deemed to speak of the notice as the instrument in writing, and to verify its statements. The remainder of the verification is that the notice is true of affiant's own knowledge or information and belief, and, as it seems to me, is a substantial compliance with the statute. Mr. Wait says that it is clearly allowable to frame the verification to all pleadings indiscriminately in the exact words of the statute. 2 Wait, Pr. 339. It is sufficient if the substance of the statute, without evasion, is contained in the affidavit. In re Macaulay, 94 N. Y. 578; Waggoner v. Brown, 8 How. Pr. 212; Kingsland v. Cowman, 5 Hill, 610.

Justice BRONSON, speaking of the form of an affidavit required by statute, says: "He may obtain an order for that purpose on an affidavit that he believes he has a defense' under the statute. Such an affidavit is sufficient, because the statute so provides. This statute not only fails to prove anything for the defendants, but it proves something against them. We are to suppose that where the legislature uses different words different things are intended." So it may be noticed with respect to the different lien laws that different forms of verification have been required by different statutes; but where in the statute in question it is finally provided that the verification shall be to the effect that the statements are true to "the knowledge or information and belief" of the deponent, we may conclude that that general form was deemed

sufficient, and that it was not intended to require the affidavit to be distributive in form, so as to designate what particular statements are sworn to upon knowledge, and what upon information and belief. Plainly the statute was intended to be construed liberally as a remedy, and not strictly as a departure from the common law. The lien being valid, the plaintiffs had their right of action against the defendants. The defendants have contested the suit, as it would seem, on the faith that Mr. Allen would not have made the entry of payment in his book unless such payment had beeen actually made. Of course it is possible the payment was made; that it might have been made to some representative of the plaintiffs' firm, who did not account to the plaintiffs for it; but there is no proof that such representatives are not entitled to the same respect for integrity that is claimed for the intestate. If the debt was really paid it is unfortunate for the defendants that the laws of evidence exclude the proofs upon which they relied, but it is clear that the law excludes proof of entries, and declarations of the character of those made by the deceased. The defendants having put the plaintiffs to the expenses of the action without the means of establishing a defense on the merits, the judgment must go against them, with costs.

TIGUE v. ANNOWSKI.

(Superior Court of Buffalo, Trial Term. June, 1889.)

NEW TRIAL-Surprise-NEWLY-DISCOVERED EVIDENCE.

In an action to recover money loaned, defendant claimed that it was given to her as a present by her son, who, as a witness, denied that in proceedings supplementary to execution against him he testified that he borrowed the money for his mother as her agent. Plaintiff and two other witnesses testified that he did so testify in the supplementary proceedings. Defendant was then granted leave to call a witness to sustain the son's testimony, but neglected to subpoena him, and on his failure to appear the case went to the jury, who rendered a verdict for plaintiff, to which no objection was made as to the principles on which it was found. Held, that a new trial on the ground of surprise and newly-discovered evidence could not be granted.

On motion for a new trial.

Assumpsit by Thomas Tigue against Caroline Annowski to recover $200 loaned to her through her son, John R. Annowski, as her agent. Judgment for plaintiff, and defendant moves for a new trial.

John T. Gardner, for plaintiff. Roberts, Alexander & Messer, for defendant.

TITUS, J. This action was brought to recover $200 claimed to have been loaned to the defendant by the plaintiff in 1882. The answer is a general denial. On the trial the plaintiff gave evidence to establish his cause of action, and the defendant's proof tended to disprove the plaintiff's claim. The theory of the plaintiff's case is that the plaintiff loaned the money to the defendant at the request of John R. Annowski, a son of the defendant, as her agent. While the defendant admits that she received the money from her son, it was not as a loan from the plaintiff or anybody else, but a Christmas present to her, from her son, John R.; that she did not borrow the money or authorize her son to borrow it for her. On the trial, John R. Annowski was called as a witness for defendant, and testified, in substance, that in 1883 he had a lawsuit with one Guerdin I. Ingersoll, in which a judgment was obtained against him, and that proceedings supplementary to execution were instituted on that judgment, and he was examined in reference to his property before Mr. Le Clear, as referee. He says he did not, in that proceeding, testify that he borrowed $200 from the plaintiff for his mother, or as her agent, and give it to her. After defendant had rested her case witnesses were called by the plaintiff for the purpose of contradicting the statement of John R. Annowski as to the testimony he gave in that proceeding. Ingersoll and Gard

ner both testified that Annowski was sworn as a witness in that proceeding, and testified that he borrowed the money from Tigue for his mother, and gave it to her. The plaintiff was called and testified that he had a conversation with Annowski about the $200 at the time the supplementary proceedings were pending, and the witness says he told him that he got the money for his mother, and he said that was what he had sworn to. The case was submitted to the jury, and they returned a verdict in favor of the plaintiff for the amount claimed.

The defendant now moves for a new trial, on the ground of surprise and newly-discovered evidence. The defendant's counsel claimed that he was taken by surprise, and did not know, and had no reason to expect, that any such evidence would be given, or was in existence. He also claims that Mr. Calkins and Mr. Emery were the attorneys having charge of Annowski's case in the supplementary proceedings, and, after consultation and after refreshing their memories, recalled the fact that said Calkins was present at the examination of Annowski, and would testify on another trial that Annowski testified in that proceeding that he obtained $200 from Tigue, and gave it to his mother as a Christmas present; that he did not borrow the money as the agent of his mother. It appears from the papers in the case that after the plaintiff had given his proof contradicting the statement made by the witness, John R. Annowski, on his cross-examination, that the defendant's counsel asked for time to make an investigation about the matter testified to; that the court took a recess to enable the counsel to present such evidence as he should discover to sustain the testimony of Annowski upon this point. On the reassembling of the court, the counsel announced that Mr. Emery was expected as a witness upon that point, but that he had not yet appeared. After waiting some further time for Mr. Emery, the case was presented to the jury by the counsel. It appears that Mr. Emery was not subpoenaed, but had agreed to come into court and give his testimony. These are substantially all the facts bearing upon this question.

I have made a careful examination of the authorities submitted by the respective counsel, and have examined such other cases as have been brought. to my attention. To entitle a party to a new trial on the ground of newlydiscovered evidence, it must appear (1) that the evidence has come to his knowledge since the trial; (2) that there was no want of diligence on his part, that he did not sooner discover it; (3) that it is not accumulative; (4) that it is so material and important that it would probably produce a different result if a new trial were had. Bank v. Heaton, 6 Thomp. & C. 37; Railroad Co. v. Sage, 35 Hun, 95. It cannot fairly be said that the proposed evidence of Mr. Calkins would cause the jury to come to a different conclusion. It would simply present more fully the defendant's side of a collateral issue, and the jury might properly find the same verdict with the new evidence as it did before. It presents no new question, and is of the same nature as the testimony given on the former trial. It is simply additional testimony of like character to that given by the witnesses Tigue, Gardner, and Ingersoll, although it disputes their evidence. Schultz v. Railroad Co., 47 N. Y. Super. Ct. 285. It is not claimed that the jury made a mistake as to the principles on which their verdict was made up. Sargent v. ——, 5 Cow. 106. The most that can be said for it is that it would present to the jury the evidence of one additional witness upon a disputed fact. In disposing of this motion, as I understand the rule, the testimony of Mr. Emery cannot be considered, for the reason that all of the facts which are within knowledge of Mr. Emery were known to the defendant's counsel at the time. He omitted to subpoena him, and he cannot now claim anything from his testimony. Messenger v. Bank, 6 Daly, 190; Gawthrop v. Leary, 9 Daly, 353. If the defendant was surprised by the unexpected absence of his witness, or his inability by reason of the occurrence of some unexpected circumstance in the case to meet the evi

dence, he should have asked for the suspension of the trial, or for leave to withdraw a juror, and not wait to see whether the jury might not, after all, give him a verdict. It is only evidence that is discovered after the trial for which the party can ask a new trial, and not for evidence of which the defendant knew of its existence, but was unable to get it. Seaman v. Koehler, 12 N. Y. St. Rep. 582; Shattuck v. Bascom, 15 N. Y. St. Rep. 1013; Hurlbert v. Parker, 5 N. Y. St. Rep. 454; Soule v. Oosterhoudt, 20 Wkly. Dig. 67; Peck v. Hiler, 30 Barb. 655; Messenger v. Bank, 6 Daly, 190. This evidence partakes of the character of impeaching testimony, and it is for the purpose of sustaining the evidence of the witness Annowski, which has, to some extent at least, been impeached; and it is a well-established rule that a new trial will not be granted on newly-discovered evidence which tends merely to impeach the credit of a witness. This evidence which defendant claims he can produce, while it might tend to establish the main issue, is clearly on a collateral issue raised by the impeaching testimony. On such evidence new trials have uniformly been denied. Shumway v. Fowler, 4 Johns. 425; Duryee v. Dennison, 5 Johns. 249; Beach v. Tooker, 10 How. Pr. 297; Carpenter v. Coe, 67 Barb. 411. I am therefore of the opinion that the motion for a new trial should be denied.

DEXTER v. Beard.

(Supreme Court, General Term, Fourth Department. July 20, 1889.)

1. DEED-CONSTRUCTION-RIGHT OF WAY.

A deed made in 1846 had the following clause: "Also a right of way" between the "south line and a line drawn parallel with the north side" of a certain store; "said lane not to be occupied or built upon by either party." The store referred to was built in 1841, and owned by grantor, and bounded the lane, which from its north line to the side of the store was 16 feet wide. There was a hatchway projecting about 5 feet into the lane, leading into the cellar of the store. Held, that the expression "north side of the store" did not mean the north side of the hatchway, and one building where the store stood into the lane 5 feet north of the side of the store to the line of the hatchway will be enjoined.

2. COVENANTS-RUNNING WITH THE LAND.

The expression, "said lane not to be incumbered or built upon by either party," was a covenant with both parties, running with the land, and passed to a subsequent grantee without special assignment.

8. SAME-BREACH.

The fact that the predecessors of defendant had violated the covenants by erection of temporary obstructions does not relieve defendant of his obligations under them. 4 SAME-DAMAGES—INJUNCTION.

Whether plaintiff could obtain full damages at law for the obstruction of the right of way not being made clear at the trial, the injunction was discretionary with the trial court, and will not be disturbed.

Appeal from special term, Cortland county.

The action was brought by Margaret Dexter, to restrain Randolph Beard, defendant, from encroaching upon, incumbering, or building upon a certain right of way appurtenant to the plaintiff's premises in the village of Cortland; and the decision at special term orders an abatement or removal of the encroachment or obstruction placed in the lane. The principal question in the case turns upon the construction of the clause found in a deed bearing date the 5th day of May, 1846, executed by Parker Crosby and wife to William O. Barnard. In that deed a certain village lot was conveyed, and, following the description of the premises thus conveyed, is the following language, viz.: "Also a right of way the whole length of the south line of the above-described lot between the said south line and a line drawn parallel with the north side of the store now occupied by James Van Valen on the grantor's village lot, this day mortgaged to said grantee, to be used by the grantee in common with the grantor, said lane not to be incumbered or built upon by either party, together with all and singular the rights, members, privileges, hereditaments,