A motion was made by the plaintiff in this cause, at a special term, to set aside the verdict upon three grounds:
1st. Irregularity.
2d. Surprise of the plaintiff and mistake of one of the witnesses.
3d. Newly discovered evidence.
The court, at special term, refused to sustain the application upon the second and third grounds; and deeming the first ground involved in doubt, by reason of the contradictory nature of the affidavits of the parties and their respective witnesses deposing on the subject, the court directed, that if a new trial should not be ordered on the case made in the cause, an issue be made up for trial to settle the question of irregularity, and if thereupon the jury should find for the plaintiff, a new trial should be had.
The defendants appeal to the court in general term. It is claimed, by the plaintiff, that an appeal cannot be brought by the defendants from this order. But if it can, I regard this appeal as without foundation.
I do not deem it necessary to enter into any extended discussion of the proofs exhibited by the affidavits; nor have I any means of determining how far the alleged irregularity may or may not have affected the result. Neither the case, nor the pleadings, nor any history of the trial, have been laid before the court on this appeal. Being governed by the affidavits, I think it only necessary'to say that no rule of law, nor any rule of fairness nor honesty will allow a verdict to stand, which can have been in any degree affected by the artifice and deception charged by the respondent. That counsel should surreptitiously remove and conceal some of his adversary’s documentary evidence—-clandestinely suppress other written testimony—when the whole papers are asked for by the jury, or are agreed to be delivered to them on their retiring—and deceive the adverse counsel into the belief that the papers have all been delivered to the jury for their examination and consideration—can never be tolerated.
*48If these allegations are unfounded, the awarding of the feigned issue cannot prejudice the defendant. .If .they are true, the consequences ought not to stop with setting aside the verdict.
And upon an examination of the affidavits, so far from regarding the order appealed from, in its effect upon the defendants, as improvident or improper, I am more inclined to doubt whether—notwithstanding the contradictions—the preponderance is not in favor of the plaintiff’s allegations to such a degree as to have rendered an issue unnecessary.
The order at special term must be affirmed, with $10 costs to respondent.