Hyperlawhypertext legal database Irish Industrial Exposition & Amusement Co. v. Sheridan 106 N.Y.S. 392

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Irish Industrial Exposition & Amusement Co. v. Sheridan

106 N.Y.S. 392 Court N.Y. App. Div. Decision date 1907-10-25 English

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p. 392
IRISH INDUSTRIAL EXPOSITION & AMUSEMENT CO., Limited, v. SHERIDAN.
(Supreme Court, Appellate Division, First Department.
October 25, 1907.)

Headnote

Continuance—Sickness or Party.
Where, upon the application for an adjournment, it appeared from the affidavit of a reputable physician that defendant was so ill that to go to court would be at the risk of his life, an adjournment should be granted, although there had been previous adjournments for the same reason.
[Ed. Note.—For cases in point, see Cent Dig. vol. 10, Continuance, §§ 40-57.]
Appeal from Special Term.
Action by the Irish Industrial Exposition & Amusement Company, Limited, against Andrew Sheridan. From an order denying a motion by defendant to open his default and vacate an inquest taken against him, he appeals. Reversed.
p. 393
Argued before PATTERSON, P. J., and INGRAHAM, LAUGH-LIN, CLARKE, and HOUGHTON, JJ.
Edward W. S. Johnston, for appellant.
T. ,W. Tyng, for respondent.

It satisfactorily appears that at the time this inquest was taken the defendant was a sick man, and there was presented to the court upon the application for an adjournment the affidavit of a reputable physician, in which it was stated:

“That the defendant has been confined to his bed since December 14th, 1906. * * * Although Mr. Sheridan is improving in health, he still has a daily rise of temperature to 102° and is at times very weak. Until these conditions are better, I must forbid him from going to court, as such duty would be at the risk of his life.”

It seems to us that, while there had been some previous adjournments, they had all been caused by the defendant’s serious illness, and that, under the circumstances presented, the. further adjournment asked for ought to have been granted.

The order appealed from therefore should be reversed, without costs in this court to either party, and the motion to open the inquest and let the defendant in to defend granted upon the payment of costs as taxed, and $10 motion costs; the judgment to stand as security.