Sudam v. Swart — 20 Johns. 476

Majority

p. 476

Sudam against Swart.

Headnote

Proceedings fore Creferees¡ will be stayed, vit of the absenceofamaEerial witness, who had gone state, but was return by a eertam day.

MOTION, on the part of the defendant, to stay the proceedings in this cause, until the first day of April next, on an affidavit of the absence of a material witness, who had gone out of the state, and was expected to return home by . . 0 that time, eZ-C.

jt appeared, that the cause had been regularly referred, by an order of the Court, in August last: and there was a notice of a meeting of the referees, for the 14th of Novem ¿er ]ast_ The defendant obtained a Judge’s order to stay the proceedings, until this term.

Sudam,, in propria persona, contra.

The order of the Judge in this case, stayed the proceedings on the reference, with a view to this motion, which is, that the referees stay proceedings until the first day of April next. It is not doubted, that the witness, who is absent, is a material witness, nor but that he will return home by that time. It is objected, that such a rule, as that now asked for, is unprecedented ; and that it ought to be left to the discretion of the referees, in the first instance, and that this Court ought not to interfere, until it is seen, that the referees will not consent to an adjournment of the hearing. The cases of Bird v. Sands, (1 Johns. Cases, 394.) and Combs v. Wyckoff, (1 Caines, 147.) appear to us to be in point, that this Court will stay the proceedings before referees, on a proper foundation being laid for the application. Indeed, it is the common practice of the Court to do so. The referees may, and probably would, allow an adjournment, until a material witness, who was absent, should return. They might not, however.

p. 477

think fit to grant it. The application to this Court is a cautionary measure, in which we think the party has a right to our aid, in order to prevent an unnecessary accumulation of costs, and to prevent his being compelled to go to a hearing, when he is not prepared, from causes over which lie has no control.

Rule granted.