
    NEW YORK SUPERIOR COURT — GENERAL TERM,
    JANUARY, 1895.
    John McClave, Appellant, v. John Gibb, Respondent.
    Appeal by plaintiff from order made at Special Term, denying a motion made for a new trial on the ground of surprise.
    Parsons, Shepard c@ Ogden, for appellant.
    
      Wm. B. Ellison, for respondent.
   McAdam, J.

Under the pleadings as construed by us on the .separate appeal taken from the judgment dismissing the complaint, the matters in respect .to which the plaintiff claims to have been surprised were, not material, and there was, therefore, no' legal reason why a new trial should have been granted, and for that reason the. Order denying the motion must be affirmed, with costs.

Freedman and Gildersleeve, JJ., concur.

Order affirmed, with costs.  