The plaintiff in error was convicted upon an indictment for the publication of a libel on Edward P. Baird. At the commencement of the trial the accused furnished proof of the service of a subpoena upon one E. W. Kuster, and had him called in court. Kuster did not answer. The trial proceeded, the court issuing an attachment for Kuster, who lived in Yonkers, a few miles from White Plains, where the court was held. At the opening of the court upon the second day of the trial the sheriff made a return that he could not find Kuster. The defendant then applied to have a juror withdrawn, and that the case go over the term. The court refused to grant the motion, solely upon the ground that it had no power or discretion to grant the motion, at the request of a defendant, during the progress of the trial. In this we think the court erred. (People v. Olcott, 2 Johns. Cas., 301; People v. Goodwin, 18 Johns., 187.) The defendant excepted to the ruling, and did not proceed further with his defence.
After conviction the plaintiff in error made a motion for a new trial, and this motion also was denied, solely upon the ground *383that the court had no power to grant the motion. In this also the court erred. Courts of sessions have power by statute to grant new trials in cases tried before them. (Laws of 1857, chap. 769.)
The conviction should be reversed, and a new trial granted at the Court of Sessions of Westchester county.
DyichaN, J., concurred. Present — BaeNakd, P. J., Gilbert and DyiimaN, JJ.Conviction reversed, and new trial granted at Sessions.