Walbridge v. J. Dewing Publishing Co. — 24 N.Y.S. 602

Majority

p. 602

WALBRIDGE et al. v. J. DEWING PUB. CO.

(Supreme Court, General Term, Second Department.

July 28, 1893.)

Headnote

'Continuance—Absence oe Witness.

An order refusing a postponement of trial for absence of a witness will not be disturbed on appeal where it appears that the moving party had for several days previous to the motion answered ready on the call of the day calendar, though knowing of the witness’ absence.

Appeal from circuit court, Kings county.

Action by Francis E. Walbridge and others against the J. Dewing Publishing Company. Defendant moved for a postponement three days before the trial, on the ground of the absence of a witness, who, according to defendant’s affidavit, had formerly, been in defendant’s employ, but had a year before gone into the employ of a person in another state. From a judgment for plaintiffs, and from several orders, one of which denied the postponement, defendant appeals.

Affirmed.

Argued before BARNARD, P. J., and DYKMAN and PRATT, •JJ. '

Saunders, Webb & Worcester, for appellant.

Jackson & Burr, (Jas. A. Burr, Jr., of counsel,) for respondents.

>This action was brought for the recovery of -damages sustained by the plaintiffs for a breach of contract entered into between them and the defendant. The cause was tried at the. circuit, before a jury, and a verdict was rendered in favor of the plaintiffs for $2,576.41.' The record presents four appeals by the defendant,—one from the judgment entered upon the verdict; one from the order denying a motion for a new trial, upon the minutes of the court; one from an order denying a motion to postpone the trial of the action; and one from an order refusing to •stay the entry of judgment, and direct a reference of the equitable •defense set up in the answer. The appeals are all • destitute of merit. There is nothing in the answer that bears the faintest resemblance to an equitable defense, and in relation to the motion to postpone the trial the judge evidently looked upon it as an afterthought, inasmuch as the counsel for the defendant had answered ready upon the call of the day calendar for several days previous. In relation to the other two appeals, it is sufficient to •say that the verdict is well supported by the evidence, and the record discloses no errors. The judgment and order denying the

p. 603

motion for a new trial should be affirmed, with costs, and both of the other orders should be affirmed, with $10 costs and disbursements in each case. All concur.