Citation Numbers: 95 A.D. 499, 88 N.Y.S. 989
Judges: Ingraham
Filed Date: 7/1/1904
Status: Precedential
Modified Date: 1/13/2023
This action, which was to recover the amount due to the plaintiffs as the wife and children of one Julius M. Spero by virtue of a certain benefit certificate issued by the defendant, came on for trial on the 4th of April, 1904, at which time an affidavit was handed to the court on behalf of the defendant asking that the case be adjourned in consequence of the absence of a material witness. That application was denied, but the case was held until the next day (Friday, April eighth). On the morning of the eighth of April an affidavit was submitted to the court from which it appeared that the counsel for the defendant who was to try the case was actually engaged in the trial of a case in the United States Circuit Court; that the trial of that case had commenced on the day before, and that it had not been completed and would probably take all the morning and perhaps a part of the afternoon of that day. The
We think this case is within rule 7 of the Rules for the Regulation of the Trial Terms of the Supreme Court in the First Judicial District, and that the defendant was entitled to have the case passed for the day. The rule provides that “ in a cause upon the day calendar for trial, where it shall appear to the court by affidavit that counsel who is to try the same is * * * actually engaged in the trial of a'cause in a court of record in the counties of New Tork or Kings, the cause shall be passed for the day, or until such argument or trial is concluded, unless the trial im which the counsel is engaged is a protracted one.” The fact that counsel also asked for an adjournment upon the ground that a witness was absent, which would not" justify an adjournment, did not také away the right to present an excuse which entitled the defendant to have the case passed.. I think that the motion to set. aside the judgment should have been granted and the case restored to the Trial Term calendar for trial. The defendant should pay ten dollars, term fees and. ten dollars costs of motion.
The order . appealed from must • be reversed, the judgment and inquest vacated upon payment by defendant of twenty dollars costs
Van Brunt, P. J., Patterson, McLaughlin and Laughlin, JJ., concurred.
Order reversed and judgment and inquest vacated on payment by defendant of twenty dollars costs, and case restored to calendar for trial without costs of appeal.