
    NIEBERG et al. v. GREENBERG.
    (Supreme Court, Appellate Term.
    December 7, 1904.)
    1. Trial—Adjournment—Surprise.
    Where plaintiff brought an action tor rent under a lease for a term alleged to have commenced April 1st, and defendant in his answer set up the lease proved, under which'the term was to commence on Blay 1st, the variance being immaterial, defendant was not entitled to an adjournment for surprise.
    Appeal from Municipal Court, Borough of Manhattan, Fourth District.
    Action by Benjamin Nieberg and others against Samuel Green-berg. From a Municipal Court judgment in favor of plaintiffs, defendant apoeals.
    Affirmed.
    Argued before FREEDMAN, P. J., and BISCHOFF and GIEDERSLEEVE, JJ.
    A. B. Jaworower, for appellant. •
    Shapiro & Shapiro, for respondents.,
   BISCHOFF, J.

The action being for rent of the month of June under a lease alleged to have commenced April 1st, the plaintiffs produced a léase in which the term was stated to commence May 1st, and the defendant, asserting surprise,- moved for an adjournment, which was denied. Upon -this appeal the point made' is there was an abuse of discretion in the refusal of the adjournment asked.

We fail to find any basis for the contention. The mere assertion of surprise, when in fact there was no reason for the assertion, does not suffice. There the defendant, in his answer, set up the very lease which the plaintiffs proved, and the time of commencement of the term was not at all material to the actual question at.issue. As matter of identification of the lease, the date was known to the defendant as May 1st, and he came to court with knowledge that this was the only lease; hence he could not have been surprised when the plaintiffs proved it, unless the surprise was that the court properly would decline to hold the plaintiffs to an immaterial variance.

Judgment affirmed, with costs. All concur.  