
    Ambrose Giraudat, Respondent, against Henry Korn, Appellant.
    (Decided June 3d, 1878.)
    The denial of a motion made at trial term to postpone the trial of a cause, on the ground of the absence of a material witness, cannot be reviewed upon appeal from an order made at special term by a judge other than the judge who presided at the trial, upon a motion for a new trial based upon affidavits alleging surprise and mistake.
    
      It seems, that the only modes by which such refusal of the court can be reviewed upon appeal are, either by making the affidavits used on the application for postponement a part of the record and appealing from the judgment, or by suffering a default at the time of the court’s refusal to postpone, and appealing from an order denying a motion to open such default.
    Appeal from an order made at special term denying a motion for a new trial, made upon affidavits alleging surprise and mistake.
    The facts are stated in the opinion.
    
      F. J. Moissen, for appellant.
    
      Ooudert Brothers, for respondent.
   Van Brunt, J.

This is an appeal from an order denying a motion for a new trial, upon the ground of surprise, mistake, &c.

The surprise and mistake, &e., consisted in surprise of the defendant’s counsel at the rulings of the court, and mistake of the court in not postponing the trial upon the application of the defendants, upon the ground of the absence of witnesses whose testimony was material to the defendant.

If the court erred in excluding or admitting testimony, that can be remedied by appeal, and as the court have affirmed the judgment upon the merits, this ground affords no claim for relief.

The action of the court in refusing to postpone the cause upon the ground of the absence of a material witness cannot be reviewed in this manner.

If the papers upon which the application to postpone was printed had formed part of the record upon the appeal from the judgment the action of the court could have been reviewed upon that appeal; or if the defendant had suffered a default, a review might have been had of the order denying the motion to open the default; but after a trial had been had I know of no means of reviewing the error made during the trial, except upon appeal from the judgment. No motion can be made before- a judge other than the one trying the cause for a new trial, for error of fact or law, unless the judge who presided at the trial, if living and in office, specially directs the motion to be heard before another judge, and consequently the judge before whom this motion was made had no power to entertain the same (§ 1002, Code).

I am of the opinion, therefore, that the order appealed from should be affirmed, with costs and disbursements.  