107 N.Y.S. 334 | N.Y. App. Div. | 1907
The action was tried at Trial Term. It is insisted that the records clearly show occasion for surprise from the method of the justice who presided. The records fail to show that the learned counsel for the plaintiff made any sign at the trial'that he was surprised or that he asked either for a continuance or for the withdrawal, of a juror. In Dixson v. Brooklyn Heights R. R. Co. (68 App. Div. 308) we held that “ The rule is well settled that a plaintiff who is surprised by evidence which he is'not prepared to rebut. should move for an adjournment or for leave to withdraw a juror.; otherwise he is not entitled to a new trial on. the ground of surprise. (Baylies N. Tr. & App. 531, and cases there cited; Messenger v. Fourth Nat. Bank of the City of New York, 6 Daly, 190; Soule
Tlie order should be affirmed, with ten dollars costs'- and disbursements. . '
Woodward, Hooker and. Miller, JJ., conctirréd; Hirsohberg, P. J., not voting.
. Order affirmed, with ten dollars costs and disbursements.
See Laws of 1892, chap. 688, § 41.— [Rep.