Pettigrew agt. The Mayor, &c., of the City of New-York. Mr. Lovell swears to an inspection of the record of the contract, and his belief that the erasure and alteration were fraudulently made. The book was produced, and inspected by consent. It is sufficient to say that, with the affidavit, there is ground for inquiring into the fact, at least, if any further inquiry can be allowed in the case. By the revised statutes, no judgment in any court of record shall be set aside for irregularity on motion, unless such motion be made within one year after the time such judgment was rendered. (2 R. S. 359, § 2.) The Code (§ 174) is more comprehensive: "The court may, in its discretion, and upon such terms as may be just, at any time within one year after notice thereof, relieve a party from a judgment order or other proceeding taken against him, through his mistake, inadvertence, surprise, or excusable neglect." It can scarcely be contended that, when a trial has been had, the court under this section would grant relief, when it would not grant a motion for a new trial under such circum stances. The decision in this court, of Levy agt. Joyce (1 Bosworth's Rep. 622), does not conflict with this view. Though an excusable omission, and under very special circumstances, a claimant upon a fund, who had omitted to produce his proofs at all upon a trial involving the rights of many others, was admitted after judgment. So in the important and pertinent case of Bell agt. Kelly (2 Harrison's N. J. Rep. 270), there was a judgment by default, and some proceedings were taken to amerce the sheriff. There was then an application to open the judgment, on an affidavit that the defendant had been an endorser on several notes of the firm of Tyson & Co., and supposed, when sued, that the action was one of such notes; that about the 17th day of May, 1839 (after judgment), he for the first time discovered that one of such firm had been in the habit of forging his name on several notes; that he believed the note in question was false Pettigrew agt. The Mayor, &c., of the City of New-York. and forged; that he called on the plaintiff's attorney as soon as his suspicion was aroused, who had refused to let him see the note. The judgment was opened on terms. (See also the case cited at page 274.) Now, few points are better settled than this, that a motion for a new trial, on the ground of newly discovered evidence, will not be entertained where the applicant has had the means of procuring the evidence at the former trial, and could have known of its existence then with the use of similar diligence with that which has obtained it subsequently. (Graham and Waterman, vol. 3, 1030, 1035.) Any degree of complicity, however, of the other side, in any fraud, or deception, or misleading, will decide the question, and induce the court to grant the application. It is not a justifiable conclusion, upon the papers before me, that the plaintiff participated in, or knew of any such fraud. Nor should I be warranted in saying that the mere fact of the extra amount being $7,000 raises a presumption of fraud in him. He is entitled, in law and practice, to the benefit of the considerations that he has never kept a copy of his bid, believes the contract corresponded with it, and that the average of all the bids for filling earth is thirty-eight cents, and the average of the total amounts for the whole is about $14,162. But the plaintiff, in vindicating his own integrity, presents a case for the relief of the defendants. He is to be assumed as having offered a bid at 42 cents for earth, making his aggregate amount for the work $15,197, instead of $8,137. There were then nine lower bidders. The contract was made by the mayor, aldermen and commonalty, through the street commissioner, on a misstatement or mistake of the fact. The contract sanctioned and intended to be made was for 22 cents. The contract actually made was unfounded in fact, and in my opinion void. The plaintiff meant and offered to take the contract for 42 cents. The corporation never acceded to this, but did agree to a contract, which the plaintiff never agreed to. This mutual and fundamental mistake of the very basis of the contract is ample ground for relief, and of the power of VOL. XVII. 32 Utica City Bank agt. Buel. the court to give relief I entertain no doubt. (Levy agt. Joyce, 1 Bosworth's Rep. 622.) But the plaintiff has performed the work, and has got a judgment after litigation, that he is entitled to payment. There does not seem to be any justice or good reason for giving relief beyond correcting the error in this particular. My impressions are, as the Code permits the fixing of terms and conditions, that the plaintiff has a right to put himself in the place of the actual lowest bidder, Mr. whose proffer was for $10,650. The consequence of this would be a reduction upon the judgment of $2,453, with interest from the 1st day of May, 1857. Still, I doubt whether I can do anything regularly under this application, but to set aside the judgment and report of the referee. Whether the cause may be proceeded upon under the order of reference, or what other course may be regular, is for counsel to determine. Order to set aside and vacate the judgment entered in this cause, with the report of the referee, and all proceedings subsequent to such judgment, without costs. On settling the order, the counsel may bring before me the above considerations, if so advised. SUPREME COURT. THE UTICA CITY BANK agt. ALTON BUEL. It is not necessary that the affidavit, on which an order is issued for the examination of a judgment debtor in proceedings supplementary to execution, should be served with the order. A sheriff's certificate of the service of an order, for the examination of a judgment debtor in supplementary proceedings, is not sufficient evidence that such service has been made. An appearance of the judgment debtor, however, upon such service, cures the defect. Utica City Bank agt. Buel. There are but two classes of cases where the certificate of an officer is evidence of the facts stated in it, and upon which some future action can be predicated. The first is, where it is made evidence by statute, and the second, where what is technically known as process, or that which is in the nature of process, is directed to the sheriff, and he is required or directed to make a return thereto. At Chambers, August 9, 1859. MOTION for an attachment against the defendant for contempt. KERNAN & QUINN, for plaintiff. BACON, Justice. On the 26th day of July, 1859, an order supplementary to the return of an execution was obtained by the plaintiff, requiring the defendant to appear and be examined on the 29th of July before a referee appointed for that purpose. This order was served on the 27th of July, and the proof of such service consisted of the certificate of the sheriff, without being verified by oath that such service had been made. On the day designated by the order, the defendant appeared before the referee in the manner hereinafter stated, and asked a postponement of the hearing until the 5th of August thereafter, which application was granted by the referee. Upon the adjourned day the defendant did not appear, and thereupon, on the certificate of the referee, and an affidavit of the attorney for the plaintiff, stating the facts, an order was granted by me, returnable on the 9th of August, requiring the defendant to show cause why he should not be attached as for a contempt, in not obeying the order to appear and submit to an examination. The defendant, by his counsel, now appears and submits that the order should be discharged: 1. For the reason that the affidavit on which the order was founded was not served with the order; and, 2. That no proper and legal proof was made of the service upon the defendant of the original order to appear and be examined, and that, consequently he was Utica City Bank agt. Buel. not in contempt for not appearing on the adjourned day. The first objection I overruled, on the authority of Green agt. Ballard (8 How. 315), and other cases. As to the second, the Code provides (§ 302), that if any person, party or witness disobey an order of the judge, or referee, duly served, such person, party or witness may be punished by the judge as for a contempt. The defendant's counsel insists that the mere certificate of the sheriff, that he served an order, affords no proof of the service of the order; that, consequently, the party was not required to appear, and cannot be punished for disobedience of the order, and on this position, to the extent that the proof of service was not duly made, I think he is right. The Code makes no provision as to the time, mode or manner of the service of these supplementary orders, nor how the proof of such service shall be manifested, or made to appear. There seems to be only two classes of cases where the certificate of an officer is evidence of the facts stated in it, and upon which some future action can be predicated. The first is where it is made evidence by statute, and the second where what is technically known as process, or that which is in the nature of process, is directed to the sheriff and he is required or directed to make a return thereto. Under the first head, various provisions are found in the statutes and in the Code, where such certificate is expressly made evidence. Thus, in respect to a summons, the provision is, that service may be made by the sheriff, or by any other person not a party to the action, but the 138th section of the Code expressly makes the certificate of the sheriff good proof of the service thereof. In reference to orders of arrest, of attachment and executions, they are all directed to the sheriff, and require him to execute the same according to law, and there is generally a mandate in all of them requiring a return to be made thereto, and they all come under the second class of cases mentioned above. But if the process is silent as to a return, the duty of the sheriff is doubtless the same, and whenever such duty is enjoined by the process, or by the law, the return is an official |