Brady v. Valentine , 50 N.Y. St. Rep. 570 ( 1893 )

Van Wyck, J.

We think the motion for a new trial on the ground of surprise was properly denied. .The alleged surprise was the absence of two witnesses at the trial. The defendant knew of their absence while the trial was going on, and took no steps to force their attendance, though he had plenty of time for so doing after discovering their absence. He made no request of the court to be permitted to withdraw a juror on that account, but, on the contrary, he elected to go on and take his chances before that jury without their testimony, and he must abide by his election. Hurlbert v. Parker, 5 N. Y. St. Repr. 454; Soule v. Oosterhoudt, 20 Wkly. Dig. 67; Foster v. Easton, 19 N. Y. St. Repr. 447.

Order must be affirmed, with costs.

Osbobne, J., concurs.

Order affirmed.