Majority
p. 134(92 Misc. Rep. 433) L. M. BOOTH CO. v. PEOPLE’S ICE & FUEL CO. (Supreme Court, Appellate Term, First Department. December 6, 1915.) Argued December term, 1915, before GUY, PAGE, and PHIL-BIN, JJ.
Headnote
Trial <§=>19—Absence of Trial Judge—Effect.The absence of the trial judge for a half hour or more during the reading of documentary evidence and while counsel were summing up, without objection by either counsel, was a failure of trial before a court and jury, required by the orderly course of procedure, so that judgment would be reversed.
[Eld. Note.—For other cases, see Trial, Cent. Dig. § 38; Dee. Dig. <§=>19.]
<§=s>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes
Appeal from City Court of New York, Trial Term.
Action by the L. M. Booth Company against the People’s Ice & Fuel Company. From an order denying a motion to vacate and set aside the verdict of the jury, plaintiff appeals. Reversed, and judgment vacated.
Brigham & Wilson, of" New York City (Edward H. Wilson, of New York City, of counsel), for appellant.
Roberts & Hepburn, of New York- City (Julian G. Roberts, of New York City, of counsel), for respondent.
■ It is uncontradicted that during the trial of this action the trial judge was absent for "a half hour or more during the reading of documentary evidence and during the greater part of the time that
p. 135
counsel were engaged in summing up to the jury. While no objection to such absence was made by either counsel, we are of the opinion that there has been no trial of the action before a court and jury as is required by orderly course of procedure.
The order will therefore be reversed, the judgment vacated, and a new trial ord'ered, with $10 costs and disbursements to appellant to abide the event. All concur.