H. W. TAYLOR, Respondent, v. JAMES McKINLEY, ALEXANDER GARRIOCH and G. W. MOWBRAY, Appellants

*H. W. TAYLOR, Respondent, v. JAMES McKINLEY, ALEXANDER GARRIOCH and G. W. MOWBRAY, Appellants. Appeal — Review oh. — Where the evidence is dubious or conflicting, this Court will not revise the discretion of the Court below, in granting or refusing a new trial. Appeal from the Superior Court of San Francisco. The plaintiff sued for work done on the sloop Nabob & Ruth, and a wharf and lime-kiln, ajl belonging to the defendants. The defendants McKinley and Garrioch answered, denying each of the allegations of the complaint. The jury found a verdict in favor of the plaintiff, whereupon the defendant McKinley applied to the Court for a new trial, and, in support of his application, filed his own affidavit, alleging that he had been surprised at the trial, by the production of his co-defendant, Mowbray, as a witness on behalf of plaintiff. After hearing the counter affidavit of B. F. Byan, attorney for plaintiff, the Court refused to grant a new trial, and the defendants McKinley and Garrioch appealed. Crockett & Page, for Appellants. B. F. Byam,, for Eespondent. The affidavit of surprise is not a ground for a neW trial, after verdict. It is no ground for a new trial that a party is not prepared. (5 Dana, 34; 8 Johns. 842; 15 Johns. 210; 4 Caines, 118.) Or that, upon a new trial, he could contradict a witness. (3 Greenleaf, 77.) [MAJORITY — Mr. Justice Heydeneeldt] Mr. Justice Heydeneeldt delivered the opinion of the Court. Mr. Ch. J. Murray concurred. This Court has always refused to interfere with the verdict of a jury, where the evidence is dubious or conflicting. Nor, in such case, will we revise the discretion of the Court below, in granting or refusing a new trial. The assignments of error made in this case are too unsubstantial to require consideration or argument. Let the judgment be affirmed, with ten per cent, damages.