Adams agt. Bush. INGRAHAM, P. Justice. I think the assignee was guilty of negligence in not giving notice to the debtors of the assignment. Had such notice been given to the defendants, they would have had the knowledge necessary to resist the application. SUPREME COURT. HENRY C. ADAMS, appellant agt. PETER G. BUSH and Jacob G. BUSH, survivors of PETER G. GARLOCK, deceased, respondents. A new trial on the ground of surprise and for newly discovered evidence will not be granted where the proposed new evidence is cumulative merely. What is cumulative testimony? It seems that where on the decision of the general term denying a motion made for a new trial upon the ground of surprise and for newly discovered evidence, an application is made to the general term for a review of their decision, on the ground of a misapprehension or mistake of the facts of the case, such application will be entertained, as it is doubtful whether an appeal to the court of appeals will lie on such decision. Argued at General Term, Schenectady, January, 1862. Decided at General Term, Plattsburg, Clinton county, May 1862. MOTION by plaintiff at the Montgomery special term, November, 1861, before Mr. Justice JAMES for a new trial upon the ground of surprise, and for newly discovered evidence. Motion denied. Plaintiff appealed to general term. Facts. 1st. Plaintiff obtained a judgment, against the defendants, by default, February 13, 1861, for $888.29, on a claim for professional services as attorney and counsellor in upwards of twenty causes, motions, proceedings, &c. 2d. The defendants moved, April, 1861, to open the default and for leave to answer, which was granted, and the cause referred to H. B. Cushney, Esq., sole referee. Adams agt. Bush. 3d. The defendants alleged, as a third defence, that a portion of the services were under an agreement that if they failed on their appeal to the general term, in a certain cause, plaintiff would charge them nothing but "traveling fees;" and they did fail on appeal, and were not liable to pay for the services. 4th. On the trial, J. G. Bush, one of the defendants, testified to such an agreement, and that it was made at plaintiff's office at the time the bond on appeal was signed by Davis as surety, in April, 1859, and that Davis was present and took part in the conversation, and advised the appeal, &c., to the general term, upon the terms alleged by the defendants. 5th. P. G. Bush, the other defendant, testified to the alleged agreement, and that it was made in March or April, 1859, and was made at plaintiff's office when the first bond for the appeal to the general term was signed, but don't remember who was present. On direct examination he said he had some talk with plaintiff about going to the court of appeals, &c.; on cross-examination, denied that he had any such conversation, or that plaintiff ever said one word to him about the court of appeals, and denied that he agreed to find a bondsman for the court of appeals, or that he was at plaintiff's office on two occasions when Davis was there, &c. 6th. Plaintiff was surprised by this evidence, and knew of no evidence to disprove such agreement, except his own, and he testified that he made no such agreement as they testified to in relation to the appeal to the general term. That simple point-blank denial was all that plaintiff testified to, or could testify to, about the alleged agreement. He then testified to various matters about a proposition to appeal to the court of appeals, which had no relation to the alleged agreement as to the appeal to the general term. This proposition of plaintiff to appeal to the court of appeals was not accepted by the defendants and no agreement was made in relation to such appeal, nor was any appeal taken to the court of appeals. Only one surety (Davis) signed the undertaking for an appeal to the court of appeals before the time plaintiff made the proposition referred to, and this was in June, 1860. The defendant, P. G. Bush, declined, and denied having had any thing to do with an appeal to the court of appeals. 7th. The referee disallowed plaintiff's claims for those Adams agt. Bush. services and disbursements on the appeal to the general term, alleging that plaintiff was out-sworn by defendants, and allowed the plaintiff $304.66 with interest from the commencement of this action for other services not disputed. His report bears date September 11, 1861. 8th. On the 1st of November, the plaintiff discovered new evidence of Davis and of Huffnail, which evidence was before unknown to him, and nothing like it given on the trial. That evidence is stated in the case as follows: "That the said Alfred B. Davis can testify to the following facts, to wit: that he, said Davis, was one of the sureties in the undertaking, on appeal to the general term, in the case of Peter G. Bush et al., assignees of George Bush agt. Fox & Brookman; that said undertaking was executed by him on or about the 23d day of April, 1859, and was acknowledged by him on the same day; that such execution was at the office of H. C. Adams, this plaintiff, and that said Adams was not present, but was away; and that Henry Adams, the father of said H. C. Adams, was there and superintended the execution of said undertaking in the absence of said H. C. Adams; that no conversation was had with said Henry Adams, nor with said H. C. Adams, on any subject relative to said H. C. Adams' charges for services; and that said Davis never saw said Adams in conversation with either of the Bushes or Garlocks in relation to any matter of appeal, nor converse or hear him converse about the same, until said Davis was called by Jacob G. Bush to said Adams' office, on two or three occasions, to execute, as one of the sureties, an undertaking for an appeal to the court of appeals, and this was in the month of June, 1860; that on the last occasion said Adams proposed, after some reluctance on the part of P. G. Bush and James Garlock, to go further; that he, Adams, would take the case to the court of appeals, and if Adams failed there he would charge them nothing, except his (Adams') traveling expenses and some other small items of expenses; and at the same time Adams agt. Bush. told said Jacob and Peter that the expenses for printing the case would be nothing, as he, said Adams, had had them printed for that purpose before the general term, and with the view of taking the case to the court of appeals if necessary; that said Davis never heard said Adams say anything about charges for services or traveling expenses, or the like, at any time except at the time he signed the bond or undertaking, in the month of June, 1860, for the appeal to the court of appeals." That Daniel Huffnail, the other surety in the undertaking, on appeal to the general term, can testify to the following facts, to wit: "that he was called to H. C. Adams' office, by Peter G. Garlock, for the purpose of executing said undertaking, and did so execute the same on the 22d day of April, 1859, and that no person was present except said Garlock and said H. C. Adams, who gave him directions how to execute and acknowledge said undertaking, and that neither of the Bushes were present, nor any conversation had about the case, except as to the extent of said Huffnail's liability as such surety, and the manner of executing the undertaking." The case further shows, "that such evidence has been discovered since the trial, and about the 1st of November, 1861, and was not previously known to the plaintiff to exist, and that the same is material and necessary to the plaintiff, and without which he cannot obtain his rights in this action, but will without the same be injured and damaged to the amount of several hundred dollars." NOTE. This evidence will prove an alibi of the plaintiff at the time the defendants alleged the agreement was made when Davis was said to be present and signed the first bond, and will prove that Daris did not see plaintiff in respect to any business of defendants until he came to sign the bond, June, 1860, for the court of appeals, over a year after the time stated by defendants. Also, an alibi of both defendants at the time Huffnail signed the bond; and if the parties were absent, of course the alleged agreement was a fabrication of the defendants to cheat the plaintiff out of his earnings and his large expenditures. It also disproves other matters testified to by defendants. 9th. Upon the newly discovered evidence the plaintiff Adams agt. Bush. promptly moved, upon affidavits and papers, for a new trial, and the motion was promptly denied. The opinion of the court at special term appears in the following communication: OGDENSBURGH, November 26, 1861. H. C. ADAMS, Esq.: Dear sir-I yesterday examined and decided your case with Bushes, denying the motion with $7 costs, on the ground that the evidence, which is shown to have been discovered, was cumulative. The case is directly within Steinback agt. The Col. Ins. Co., (2 Caines, 129;) Graham & Waterman on new trials, (vol. 1, p. 486.) The case of Seeley agt. Chittenden (4 How. P. R., 265,) is not now and never was law. It has been disregarded a hundred times or more. Yours, truly, A. B. JAMES. 10th. From that decision this appeal is brought. HENRY C. ADAMS, appellant in person, presented the following Points: 1st. What is cumulative evidence? 1st. It is additional evidence of the same kind to the same fact or point which was in proof before. (Glidden agt. Dunlap, 28 Main., (15 Shep.,) 379; Kirby agt. Waterford, 14 Verm., 414; Waller agt. Graves, 20 Conn., 305; The People agt. The Sup. C. of N. Y., 10 Wend., 285, Savage, J., 293, 294; Steinback agt. The Col. Ins. Co., 2 Caines, 129.) In these and all other like cases the proposition was to prove, by additional witnesses, the identical fact once proved on the trial. e. g. In the latter case the application was for a new trial, "on account of some other witnesses being discovered who could further testify to the facts deposed to." Of course, that was cumulative, and was not entitled to the name or character of newly discovered evidence; for that signifies, not additional witnesses, but new evidence of a fact or circumstance not before known; a newly discovered fact to which the party gave no evidence, and is entitled to have the benefit, that he may thereby obtain his rights. 2d. But evidence newly discovered, of a different kind and character from that adduced by the party on the trial, though tending to establish the same point in issue, is not cumulative. (Aiken agt. Bemis, 3 Wood. & M., 348; Burr agt. Palmer, 23 Verm., (8 Washb.,) 244; Watts agt. Howard, 7 Met., 478; Waller agt. Graves, 20 Conn., 305; Vardeman agt. Byrne, 7 How., (Miss.,) 365; Den agt. Wentermouth, 1 Green, 177; Barstow agt. Reynolds, 37 Eng. Law and |