
    McCLAVE, Appellant, v. GIBB, Respondent.
    (Superior Court of New York City, General Term.
    January 7, 1895.)
    Action by John McClave against John Gibb.
    Parsons, Shepard & 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.  