
    Leonard v. Germania Fire Ins. Co.
    (New York Common Pleas
    Special Term,
    February, 1893.)
    Where, from defect in the moving papers, it cannot he seen that justice will he promoted a motion for a new trial on the ground of surprise will he denied.
    Where a plaintiff answers ready, and proceeds with the trial in the expectation that an absent witness will arrive in time, he takes the chance of the witness’ nonattendance, and cannot urge surprise as the ground of a motion for a new trial, especially when, hy the dismissal of his complaint, he may sue again.
    Motion for a new trial on the ground of surprise by the absence of a witness.
   Pryor, J.

The method of this application is anomalous. Instead of moving on a case, the plaintiff presents an affidavit only, and that fails to communicate any information respecting the merits of the action as disclosed on the trial. No matter how absolute the surprise of a party, nor how exempt he may be from fault, still the granting a new trial depends Upon the circumstances of the case and the interests of substantial justice. Tyler v. Hoornbeck, 48 Barb. 197,199 ; Williams v. Montgomery, 60 N. Y. 648. How, upon the meagre matter before me, can I say that justice will be promoted by according the plaintiff another trial %

But, indeed, she exhibits no such surprise as the law recognizes to be a sufficient ground for relief. She had notified the witness, and he had been in court; but he failed to appear the day of the trial. Nevertheless, the plaintiff requested no postponement on account of his absence, but proceeded with the trial, expecting he would be present before the plaintiff’s case would be all presented to the court and jury.” For lack of proof of a material fact, which the absent witness was to establish, defendant moved to dismiss the complaint; thereupon, plaintiff suggested the withdrawal of a juror, but the court refused, and dismissed the action. Thus, the plaintiff took the chance of the witness’ arrival, and she must abide the result of her improvident experiment. So are all the cases. Gawthrop v. Leary, 9 Daly, 353, 354; Messenger v. Bank, 6 id. 190, 200. In Cahill v. Hilton, 31 Hun, 114, a motion for an adjournment was seasonably made.

In Oakley v. Bears, 30 N. Y. Super. Ct. 111, 113, the court said that a plaintiff is not remediless, because, in case of surprise, he can submit to a nonsuit. Here, as the complaint was dismissed, the plaintiff may sue again.

Except in total disregard of the established rule, and of all precedents, I cannot grant this motion.

Motion denied, but without costs.  