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Frey v. Shadbolt Manufacturing Co.

145 N.Y.S. 48 Court N.Y. App. Term Decision date 1913-12-30 English

Delivered by BIJUR, J.

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p. 48
FREY v. SHADBOLT MFG. CO.
(Supreme Court, Appellate Term, First Department.
December 30, 1913.)

Headnote

Continuance (§ 12*)—Sickness of Counsel. Where plaintiff’s counsel was ill when the case was called, and an appropriate affidavit to that effect was presented to the court, plaintiff’s application for an adjournment should have been granted.
[Ed. Note.—For other cases, see Continuance, Cent Dig. §| 40, 42, 49, 50, 52; Dec. Dig. § 12.*]
Appeal from Municipal Court, Borough of Manhattan, Sixth District.
Action by Conrad Frey against the Shadbolt Manufacturing Company. From a judgment dismissing the complaint on the merits, plaintiff appeals. Reversed and remanded.
Argued December term, 1913, before SFABURY, GUY, and BI-JUR, JJ.
S. John Block, of New York City, for appellant.

It sufficiently appears that plaintiff’s counsel was ill when the case was called' for trial, and that an appropriate affidavit to that effect was presented to the trial court, with an application for an adjournment. The adjournment having been refused, plaintiff appeared'in person without counsel. The case was virtually tried by the court below.

As plaintiff was entitled to an adjournment, the judgment must be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.