
    Brady v. Valentine.
    (City Court of Brooklyn
    General Term,
    February, 1893.)
    On motion for a new trial on the ground of surprise on account of the absence of two witnesses at the trial, it appeared that the moving party knew of their absence while the trial was going on, and took no steps to compel their attendance, and made no request to be permitted to withdraw a j uror on that account. üfeM, that a denial of the motion was proper.
    Appeal from an order denying a motion for a new trial on the ground of surprise.
    
      Goxe <& Stratton, for plaintiff (respondent).
    
      Purrington cfe Shcmnon, for defendant (appellant).
   Van Wyck, J.

We think the motion for a 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 N. Y. St. Repr. 454; Soule v. Oosterhoudt, 20 Wkly. Dig. 67; Foster v. Easton, 19 N. Y. St. Repr. 447.

Order must be affirmed, with costs.

Osbobne, J., concurs.

Order affirmed.  