#### DAVID BULLOCK v. M. K. (BUD) WILLIAMS.

(Filed 23 March, 1938.)

1. Trial § 47—

Affidavits supporting a motion for a new trial for newly discovered evidence are insufficient to invoke the discretionary power of the court to hear the motion when they disclose that the evidence relied upon is merely cumulative and contradictory.

2. Appeal and Error § 37b—

While a motion for a new trial for newly discovered evidence is addressed to the discretion of the trial court, when the affidavits supporting the motion are insufficient to invoke the discretionary power of the court, its ruling thereon is reviewable, and the granting of the motion will be held for error.

Appeal by plaintiff from Grady, J., at November Term, 1937, of HARNETT.

Motion for new trial for newly discovered evidence.

Tbe action for recovery of damages for personal injury resulting allegedly from actionable negligence was tried at tbe February Term, 1937, of tbe Superior Court of Harnett County. From judgment on tbe verdict in favor of tbe plaintiff, defendant appealed to Supreme Court. Judgment was affirmed at tbe Fall Term, 1937. 212 N. C., 113, 193 S. E., 170. Opinion was duly certified to tbe clerk of tbe Superior *321Court of Harnett County. At tbe next succeeding term of said Superior Court, tbe November Term, 1931, defendant filed motion for new trial upon ground of newly discovered evidence.

Tbe judge below in bis discretion allowed tbe motion, and in accordance therewith rendered judgment granting new trial, from wbicb plaintiff appealed to Supreme Court, and assigned error.

Neill McK. Salmon for plaintiff, appellant.

J. R. Young and J. A. Jones for defendant, appellee.

Per Curiam.

Tbe prerequisites to tbe granting of motion for new trial for newly discovered evidence are fully set forth in Johnson v. R. R., 163 N. C., 431, 79 S. E., 690; also in Brown v. Hillsboro, 185 N. C., 368, 117 S. E., 41; Brown v. Sheets, 197 N. C., 268, 148 S. E., 233; S. v. Casey, 201 N. C., 620, 161 S. E., 81; Love v. Queen City Lines, 206 N. C., 575, 174 S. E., 514; Furniture Co. v. Cole, 207 N. C., 847, 178 S. E., 579.

An examination of tbe affidavits offered by defendant in support of tbe motion fails to show compliance with tbe tests required. When compared with tbe evidence introduced at tbe trial of tbe case in Superior Court, it is observed that tbe so-called newly discovered evidence is merely cumulative and tends only to contradict former witnesses.

“Although tbe discretionary ruling of tbe trial judge upon an application for new trial for newly discovered evidence is not reviewable on appeal, where tbe applicant fails to make out a showing of newly discovered evidence sufficient in law to invoke tbe discretionary ruling tbe granting of tbe application will be held for error,” beadnote in Crane v. Carswell, 204 N. C., 571, 169 S. E., 160, wbicb is applicable here.

Tbe granting of a new trial below is

Error.