
    John McClave, App’lt, v. John Gibb, Resp’t.
    
      (New York Superior' Court, General Term,
    
    
      Filed January 7, 1895.)
    
    Sew trial—Surprise.
    Where the matters, in respect to which the party claims to have been surprised, are not material, a new trial will not be granted.
    Appeal by plaintiff from order made at special term, denying a motion made for a new trial on the ground of surprise.
    
      Parsons, Shepard & Ogden, for app’lt; William B. Ellison, for resp’t.
   Mo Adam, 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, P. J., and Gildersleeve, J., concur.  