By the Court. Ingraham, First J. Judgment was obtained by the plaintiff in this case by default, the defendant having mistaken the day of the return of the summons. He now moves on the return, and on affidavits, for a new trial. A misapprehension as to the return day of the summons may possibly he considered as within the provisions of the Code, which allows the appellate court to grant a new trial; hut, in addition thereto, it is necessary for the defendant to establish, by affidavits or otherwise, that manifest injustice has been- done him, and to excuse his default.

The defendant here denies the hiring, and alleges the only hiring to have been under an agreement of 1841, and avers thathe is not indebted to the plaintiff in one cent for rent. This is answered by the plaintiff and his son, both of whom testify to the indebtedness, and to frequent promises to pay by the defendant. With such a preponderance of testimony against the defendant, it cannot be said that he has shown any injustice done to him; on the contrary, the evidence by the plaintiff’s son would be sufficient, on another trial, to establish the plaintiff’s claim.

Besides this, however, the plaintiff produces the agreement for renting the premises from May, 1846, to May, 1847, and a continuance of it to July, 1847, signed by the defendant, which also establishes the defendant’s indebtedness. This could only be rebutted by proof of payment. No receipt is spoken of by the defendant, in his affidavit, nor is any witness referred to, to prove payment. The case, then, rests on the affidavit of the defendant, contradicted by the plaintiff’s affidavit, and that sustained by the written agreement of the defendant and the testimony of a witness.

We cannot, under such circumstances, say that injustice has been done to the defendant. On the contrary, with this testimony, it would be the duty of the court, or jury, if trying the cause, to render the same judgment as was1'given before the justice. If a defendant, under such circumstances, wishes a new trial, he should not only by his own affidavit show his defence, but should establish it by the testimony of a witness. If he has none, a new trial would be of no avail. We think the defendant has not made out a ease that entitles him to a new trial under the provisions of the Code. Judgment affirmed.