Gaskell v. Cowan — 35 N.Y.S. 711

Majority

p. 711

(14 Misc. Rep. 254.)

GASKELL et al. v. COWAN.

(City Court of New York, General Term.

October 29, 1895.)

Headnote

Trial—Absence op Dependant—Discretion op Trial Court.

It is discretionary with the trial justice to order the trial to proceed during defendant’s absence.

Appeal from trial court.

Action by William Gaskell and another against Stuart W. Cowan. There was a judgment in favor of plaintiffs, and defendant appeals. Affirmed.

Argued before VAU WYCK, C. J., and FITZSIMONS, J.

W. B. Beach, for appellant.

Estes, Bernard & Tiffany, for respondents.

We find no error in the admission or exclusion of evidence. The question whether or not the trial justice was right in ordering the trial to proceed during the defendant’s absence was addressed to his discretion, and, unless it appears that he acted arbitrarily, we would not be justified in reversing the judgment. We must assume that the motion to adjourn was argued for and against by the attorneys herein, as is usually the case, and that, in view of the affidavit submitted by the defendant that plaintiffs’ counsel was permitted to submit in the form of affidavits his oral arguments made at the time defendant’s counsel moved the adjournment, which was done in the light of these affidavits, we cannot say that the action of the trial justice in ordering the trial was even ill advised; in fact, they justify his course of conduct.

We therefore affirm the judgment, with costs.