Martin v. Hicks

Headnote

Order putting cause oner the circuit.

No appeal lies directly to the general term from an order made at the circuit refusing to postpone the trial of a case.

The correct practice in such cases stated.

The present appeal is taken from the refusal of Mr. justice Van Brunt, presiding at the circuit on the twenty-third of Eebruary last, to permit the cause to go over the term on defendant’s motion, which decision was put in the form of an order of that date.

Held, that no appeal lies directly to the general term from an order made at circuit refusing to postpone the trial of a case. The correct practice in such cases is as follows: When a party defendant feels himself aggrieved by a refusal to postpone a trial, whether such refusal be made on the trial by a jury or the trial -by the court, he may withdraw from the trial, and if the trial proceeds and the cause is decided against him, he may, upon affidavits showing the application to postpone, the papers upon which it is founded, its denial, and that a decision has been made against him, make a non-enumerated motion at special term to set aside such decision; he may also remain and try the case on the merits; and in case of a decision against him, either pursue the same course

to obtain a new trial, or may, if the trial were by jury, under section 265, move at special term on a case for a new trial, alleging as one of the grounds, the refusal to postpone the trial; or if the trial were by the court, may then, under section 268, appeal directly to the general term, alleging as a cause for reversal the refusal to postpone (Howard agt. Freedman, 3 Abb. [N. S.], 392; Ogden agt. Payne, 5 Cow., 15 ; Hooker agt. Rogers, 6 id., 577; 38 How., 451 ).

The appeal from the order of the circuit court should, therefore, be dismissed, with costs.