Majority
p. 609MORGAN v. WHALEN. (Supreme Court, Appellate Term. December 16, 1908.)
Headnote
1. Appeal and Ebbor (§ 662[1] )—Review—Recitals in Order—Conclusiveness.On appeal from an order denying an adjournment, the facts recited therein must be taken as conclusive by the Supreme Court.
[Ed. Note.—Eor other cases, see Appeal and Error, Cent. Dig. §§ 2850, 2851; Dec. Dig. § 662.*]
2. Continuance (§ 17 *)—Refusal—Discretion Not Abused.
It was not an abuse of discretion to refuse an adjournment, where the case had been on the day calendar many times before the inquest and was announced “Ready” several times.
[Ed. Note.—For other cases, see Continuance, Cent. Dig. § 14; Dec. Dig. § 17.*]
Appeal from City Court of New York, Special Term.
Action by Thomas H. Morgan against Frank Whalen. From an order denying an adjournment, defendant appeals.
Affirmed. Argued before GIEGERICH, HENDRICK, and FORD, JJ.
David M. Neuberger, for appellant.
William Henry Corbitt, for respondent.
The facts recited in the .order must be taken as conclusive by this court. From those facts it appears that the case was on the day calendar a great many times prior to the date of inquest, and on several of such occasions it was answered “Ready” by both sides. The default was a negligent, if not an intentional one, and the discretion of the trial court was not abused.
Order affirmed, with $10 costs and disbursements. All concur.