Wuster v. Levitt ( 1944 )

In a consolidated action to recover for damage alleged to have been caused to plaintiffs’ premises, purchased from appellants, as a result of the construction and maintenance by appellants of an inadequate storm sewer system, «order denying appellants’ motion to place the ease on the Military Suspense Calendar affirmed, with ten dollars costs and disbursements to plaintiffs, upon condition that within five days after the entry of the order hereon the plaintiffs stipulate that the deposition of defendant William J. Levitt be taken; otherwise the order appealed from is reversed on the facts, with ten dollars costs and disbursements, and the motion granted. We take judicial notice of the telegram from William J. Levitt’s commanding officer, submitted on the argument before this court of an application for a stay and filed in this court, which states “Levitt does not wish to attend this court action”. Close, P. J., Hagarty, Johnston and Aldrich, JJ., concur; Adel, J., dissents from the conditional affirmance of the order and votes to reverse and to grant the motion on the ground that the refusal to place the ease on the Military Suspense Calendar constituted an improvident exercise of discretion. |