
    John McClave, App’lt, v. John Gibb, Resp’t.
    Supr. Ct.. General Term.
    January 7, 1895.
    
      Parsons, Shepard, & Ogden, for app’lt; Wm. B. Ellison, for resp’t.
   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.  