This motion, in so far as it asks for a new trial on the ground of surprise, I think, must he made at special term.
Section 1002 of the Code of Civil Procedure provides, that in a case not specified in the three preceding sections the motion for a new trial must, in the first instance, be heard and decided at special term. v
The preceding sections alluded to, do not include a motion for a new trial on the ground of surprise.
The grounds upon which a motion for a new trial may be *168urged before the judge who presided at the trial,, are stated in section 999, and do not embrace that of surprise.
Upon the question, therefore, of surprise raised by the affidavits I cannot pass.
Upon the trial, when my attention was called to the case of Libby, Survivor, &c., agt. Strasburger,* I followed what I understood to be the decision of the general term in that case and admitted the evidence of fraud in contracting the debt, which the defendant claimed was discharged by the proceedings and decree in bankruptcy.
The evidence having been submitted to the- jury as to this question there is no reason why I should interfere with the verdict so far as it disposes of that subject.
The question as to whether the evidence was admissible under the- complaint is an important one and I do not think wholly free from doubt. ,
The rulings on this subject give occasion to the motion for relief on the ground of'surprise.
Upon reflection I think it best to adhere to the rulings on the trial; the question being one of law raised by the defendants’ exceptions can be more appropriately disposed of at the general term.
The motion is denied upon grounds not involving the question of surprise.