Majority
p. 570James Brady, Resp't, v. Henry E. Valentine, App'lt. (Court of Brooklyn, General Term, Filed January 25, 1893.)
Headnote
New trial—Surprise.A new trial will not be granted on the ground of surprise at the absence of material witnesses at the trial, where the party knew of such absence while the trial was going on, took no steps to force their attendance, and made no request to withdraw a juror on that account.
Appeal from order denying motion for a new trial on the ground of surprise.
Goxe & Stratton {H. B. 'Hubbard, of counsel), for resp’t;
Purrington & Shannon, for app’lt.
We think the motion for new trial on the ground of surprise was properly denied. The alleged surprise was the absence of two witnesses at the trial. The defendant knew of their absence while the trial was going on, .and took no steps to force their attendance, though he had plenty of time for so doing after discovering their absence. He made no request of the court to be permitted to withdraw a juror on that account, but, on the contrary, he elected to go on and take his chances before that jury without their testimony, and he must .abide by his election. Hurlbert v. Parker, 5 St. Rep., 454 ; Soule v. Osterhoudt, 20 Week. Dig., 67; Foster v. Easton, 19 St. Rep., 447 .
Order must be affirmed, with costs.
Osborne, J., concurs._