Thorn v. Eastern Mausoleum Co. , 173 A.D. 995 ( 1916 )

Per Curiam:

This order of dismissal does not preclude the plaintiff from bringing another suit for the same cause of action. It appears that the plaintiff refused to proceed with the trial of the action, notwithstanding the suggestion of the trial court that in the event of its appearing upon the trial that the testimony of the Chicago witnesses and the documents and contracts alleged by plaintiff to be material, were in fact material and necessary to the plaintiff upon the trial, permission would be granted plaintiff to take the testimony of such witnesses bj open commission and that an adjournment of the court would be taken for that purpose. We are of the opinion, in view of the suggestions so made and the laches of the plaintiff in moving for a commission until after the case was upon the ready calendar for trial, that the court was justified in refusing to further postpone the trial and in refusing to grant an order for an open commission before entering upon the trial. In view of the disposition of the appeal from the order denying a postponement of the trial and dismissing the complaint, the appeal from the order denying plaintiff’s application for a commission is dismissed. All concurred. Order refusing to postpone trial affirmed, with ten dollars costs and disbursements. Appeal from order denying application for commission dismissed, without costs.