affected by the condition and customs of the trade, and any breach of good faith on its part could be taken into account. In such a case it would be competent for the defendant to plead and prove facts to show that the orders were in excess of the plaintiff's reasonable needs, and were not justified by the conditions of the business or the customs of the trade; in other words, that the plaintiff was not acting reasonably or in good faith, but using the contract for a purpose not within the contemplation of the parties-that is to say, for speculative, as distinguished from regular and ordinary, business purposes. But no defense of this kind was either pleaded or proved in this case, and so the judgment must be affirmed, with costs."

[3] In the case at bar such defense has been pleaded, and, if proven, may defeat in whole or in part the alleged cause of action. From the moving papers it appears that the defendant has no knowledge of the names and addresses of the persons, firms, and corporations from whom the plaintiff claims to have received said orders for molasses, which orders he claims to have transmitted to the defendant, nor as to the dates, quantities ordered, nor prices at which the molasses, aggregating 2,773 barrels, was sold, the contemplated profits upon which constitute the alleged damages which he seeks to recover. Evidently, unless the defendant can be furnished with such information, it cannot properly prepare for the trial of the action, but must rely very largely upon the cross-examination of the plaintiff, with little or no opportunity to call witnesses in contradiction or explanation. Doubtless the information could be more satisfactorily obtained by means of an examination of the plaintiff before trial, but under the objection of the plaintiff that privilege has been denied, and in view of the decision cited the order of denial must be held not to be before us for review. The plaintiff can hardly in fairness object to the defendant having the information he seeks. Without it the trial would undoubtedly be unreasonably prolonged, possible injustice be done, and very probably a new trial be granted on newly discovered evidence. With the information the case can be intelligently tried and a just decision reached upon the merits. While the appeal from the order of March 21st, vacating and annulling the order for the examination of the plaintiff before trial, must be dismissed, with $10 costs and disbursements to the respondent, the order of February 12th, denying the application for a bill of particulars, must be reversed, with $10 costs and disbursements to the appellant, and the motion granted, with $10 costs to the appellant. All, concur.

MOORE v. AMERICAN MOLASSES CO. OF NEW YORK. (No. 2.) (Supreme Court, Appellate Division, Third Department. July 2, 1917.) Appeal from Special Term, Albany County.

Action by Edward Moore, trading as Moore Bros., against the American Molasses Company of New York. From an order at Special Term of Supreme Court, vacating and setting aside order for examination of plaintiff before trial, defendant appeals. Reversed, and motion dismissed.

Argued before KELLOGG, P. J., and LYON, WOODWARD, COCHRANE, and SEWELL, JJ.

PER CURIAM. Order of March 21, 1917, reversed, and motion dismissed, with $10 costs and disbursements to respondent, on the opinion in same case decided herewith, 166 N. Y. Supp. 4.

(100 Misc. Rep. 511)

SARANAC LAND & TIMBER CO. v. ROBERTS, State Comptroller. (Supreme Court, Extraordinary Special and Trial Term, Franklin County. July 7, 1917.)

1. NEW TRIAL 157-MOTIONS-MATTERS CONSIDERED.

Where, pending defendant's motions for new trials, plaintiff stipulated that defendant could have his witnesses examined before a referee and use the testimony so taken at the new trial, if any were granted, objections to the testimony so taken should be passed upon by the tribunals before whom new trials are to be had, and not disposed of at the hearing on the motions.

[Ed. Note. For other cases, see New Trial, Cent. Dig. §§ 314, 317, 318.] 2. NEW TRIAL 108(1)—NEWLY DISCOVERED EVIDENCE.

Where newly discovered evidence is material, and would likely change the result, a motion for a new trial, made with due diligence, should be granted.

[Ed. Note.-For other cases, see New Trial, Cent. Dig. § 226.]

3. NEW TRIAL 108(1)-NEWLY DISCOVERED EVIDENCE-MOVING PAPERSSUFFICIENCY.

On defendant's motion for a new trial for newly discovered evidence, evidence held sufficient to establish that a book containing entries material to the issues had been lost, and after diligent search could not be found, and that nobody connected with the defense had any knowledge of the facts therein until after the last trial.

[Ed. Note.-For other cases, see New Trial, Cent. Dig. § 226.] 4. NEW TRIAL 108(2)-NEWLY DISCOVERED EVIDENCE.

Where the principal point in dispute at the trial was whether the property described in plaintiff's complaint was within the boundaries of school district No. 2, and defendant's evidence was insufficient to establish his contention that such district was enlarged, evidence of entries in a lost record book of the town clerk establishing boundaries thereto was competent, material, and not merely cumulative, and sufficient to warrant the granting of a new trial.

[Ed. Note. For other cases, see New Trial, Cent. Dig. § 227.] 5. STIPULATIONS 13-VACATION-NEWLY DISCOVERED EVIDENCE.

A stipulation by the parties in open court that jury trial should be waived, and the action tried before the referee selected by the court, will not be vacated on motion of defendant, on granting his motion for new trial.

[Ed. Note. For other cases, see Stipulations, Cent. Dig. §§ 67-76.] 6. STIPULATIONS 14(11)-SUBMISSION TO REFEREE-CONSTRUCTION.

Under a stipulation that jury trial should be waived and the action tried before a referee selected by the court, where a new trial is granted, it is the duty of the court to appoint another referee; the stipulation not having provided otherwise.

[Ed. Note. For other cases, see Stipulations, Cent. Dig. § 35.]

Actions by the Saranac Land & Timber Company against James A. Roberts, as Comptroller of the State of New York. On motions by defendant for new trials. Granted.

Weeds, Smith & Conway, of Plattsburgh (Thomas F. Conway and Frank E. Smith, both of New York City, of counsel), for plaintiff. Merton E. Lewis, Atty. Gen. (Wilber W. Chambers, Deputy Atty. Gen., of counsel), for defendant.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

CLARK, J. On the appearance of counsel for plaintiff in opposition to these motions for a new trial, preliminary objections were made on behalf of plaintiff as to the authority of the Extraordinary Special and Trial Term, which had been convened by the Governor of the state to hear these motions, and practically the same objections were renewed at every subsequent hearing, and decision on said objections was reserved. Each of said objections is overruled, with exceptions to plaintiff.

In 1895 plaintiff brought actions against the comptroller of the state of New York to recover the lands described in the complaint; the actions being brought in the federal court and being in ejectment. One of said actions was tried in 1896, and resulted in a decision in favor of the defendant, and judgment entered on that decision was subsequently affirmed in the United States Supreme Court. 177 U. S. 318. 20 Sup. Ct. 642, 44 L. Ed. 786. Plaintiff secured an order for a new trial on the payment of costs, and the judgment was vacated; but the action has never been retried, and both actions are still pending in the federal court.

Without further prosecuting the federal court actions, plaintiff brought the present actions in ejectment in the Supreme Court of the state of New York, and they involve the same causes of action, and are between the same parties, and concern the same lands, as those referred to in the federal court actions, being the W. 12 of the N. E. 1/4 of township 24, in Franklin county, and the whole of the N. W. 1⁄4 of said township 24. In 1904, when the actions were about to be moved for trial, and in March of that year, a stipulation was made in open court whereby the parties waived a jury and consented to try them. before a referee. Three trials have been had, and the litigation has been twice to the Court of Appeals; the judgment that was rendered in favor of plaintiff on the second trial being reversed for errors in the admission of evidence. Saranac Land & Timber Co. v. Roberts, 208 N. Y. 288, 101 N. E. 898. In November, 1913, another referee was appointed in both actions, to hear, try, and determine the same; both actions were tried, and resulted in judgments in favor of the plaintiff, which were entered in February, 1917.

The principal question of fact litigated on the last trial related to the boundaries of school district No. 2 in the town of Harrietstown, Franklin county; the point in dispute between the parties being the question whether or not the property described in the complaint was within the boundaries of school district No. 2 of the town of Harrietstown in said county in 1869 and 1870, when certain school taxes were levied, and for the failure to pay which taxes the lands in question were sold at a tax sale in 1877, and bid in by the comptroller of the state of New York. The plaintiff claims, and the referee found at the last trial, that when the school taxes of 1869 and 1870 were levied the land in question was outside of said district No. 2, Harrietstown; and it is the contention of defendant that before said taxes were levied school district No. 2 had been enlarged by an order of the school commissioner of said county, so as to include all of township 24 in Franklin county.

At the last trial, while defendant claimed that said district had been enlarged, so as to include all of township 24, he was unable to produce any direct evidence to that effect, and, while it was urged that the facts as established on said trial would have justified the inference that an order enlarging said district had been made early in 1869, the evidence to sustain such a finding was by no means conclusive. Defendant here asks for a new trial on the ground of newly discovered evidence, claiming that in February, 1889, about the time one Benton Turner had litigation with the state, in which the title to the S. E. 14 of township 24 was in controversy, and, while making preparations for the trial of that case, he, in company with his lawyers, George H. Beckwith and Henry E. Barnard, went to the town clerk's office in said town to investigate and find, if possible, evidence to be used in said litigation.

Mr. Turner made an affidavit, read on this motion, to the effect that at that time he found in the town clerk's office an order, made early in 1869, signed by one Bates, a former school commissioner, enlarging school district No. 2, so as to take in the whole of township 24; that he procured certified copies of the order from the town clerk; and that he borrowed a town record book, in which said order was recorded, and took them away with him. There is abundant evidence to show that in former years they had a very loose way of transacting business. in the town clerk's office in Harrietstown, and most anybody who wanted to could go there and get a book or record without let or hindrance. This loose method of transacting business in that town clerk's office is perhaps the principal reason why this protracted and expensive litigation still continues.

Messrs. Beckwith and Barnard have made affidavits, part of the moving papers, in which they corroborate Mr. Turner in regard to the visit to the town clerk's office in February, 1889, the finding of an order, signed by the school commissioner of Franklin county, enlarging school district No. 2 by taking in the whole of township 24, that the order was recorded in the town record book, and that they never disclosed these facts to any person representing the state until they told the same to the deputy Attorney General having charge of these cases in January, 1917.

The moving papers further show that Mr. Turner borrowed said record book from the town clerk's office, together with other papers and records which belonged there, and that he took them to his home in Plattsburgh, and had them in his possession until 1903, when he moved to San Francisco; that he took said book and papers with him, including a certified copy of said order, which he had obtained from the town clerk's office in Harrietstown, and that subsequently, while in San Francisco, Mrs. Turner caused many books and papers which her husband had taken with him when he went West, and which she regarded as of no value, to be destroyed.

Plaintiff vigorously attacks the statements contained in the affidavits of Messrs. Turner, Beckwith, and Barnard, urging that most of the statements in Mr. Turner's affidavit are false, and that Messrs. Beckwith and Barnard are mistaken. Many of the affidavits read by plaintiff, whereby it is sought to impeach the credibility of Benton

Turner as a witness, were made by men who appear to have had more . or less trouble with him, and they are probably not his friends. Defendant has read replying affidavits, made by some of the most reputable citizens of Clinton county, including the present county judge, the sheriff of the county, and a former surrogate, men who have known Mr. Turner for years, and they testify in substance that for many years he was one of the most honorable citizens of Clinton county, holding positions of trust in the community, conducting an extensive business in Plattsburgh, and that his reputation for truth and veracity is good. It is sufficient to say that the effort to discredit Benton Turner as a witness has not been successful.

Plaintiff also attacks the statements made by Messrs. Beckwith and Barnard in their affidavits and oral testimony, and, while conceding that they are reputable gentlemen and lawyers of high standing, it is still urged that their statements should be given little, if any, consideration because of the fact that they are both aged men, and the frailties of memory make their statements unreliable. While the age of these gentlemen has been given due consideration in weighing their testimony, the fact must not be overlooked that many times aged persons remember with the greatest clearness transactions of many years ago, where perchance their recollection of recent events would be somewhat cloudy. Messrs. Beckwith and Barnard went to the town clerk's office in Harrietstown with Benton Turner at a time when they had in charge an important litigation for him, in which they were his counsel, and they went there to obtain evidence to be used on that trial. Their reason for being there with him was a legitimate one, and there is every reason to believe that what they discovered at that time would be impressed on their minds, and the fact that 28 years have elapsed since that visit to the clerk's office does not necessarily prove that the intervening years have clouded their recollection as to the transactions of that day. On the contrary, it may well be said that men of their intelligence, in view of the character of their errand at the town clerk's office, would have indelibly fixed in their minds the events connected with that transaction which years could not eradicate.

Now, if what these gentlemen say in the moving papers with reference to finding an order in the town clerk's office, made in the early part of the year 1869, enlarging school district No. 2 in said town so as to take in the entire township 24, is true, it is material evidence of the greatest importance in this litigation; for, if the district was enlarged so as to take in the whole of said township prior to the levying of the school taxes in 1869 and 1870, then it would seem that defendant is absolutely right in his contention here. On the other hand, if such an order was not made prior to the time of the levying of said taxes, then plaintiff would be right in its contention. So it is of the utmost importance to have the fact established once and for all as to whether or not in the early part of the year 1869 an order enlarging the district so as to take in the whole of township 24 was made as claimed by defendant.

[1] After these motions were made, Messrs. Benton Turner, George H. Beckwith, and Henry E. Barnard were orally examined before a referee, and a transcript of their testimony has been furnished this