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Heineman v. Van Stone

68 N.Y.S. 803 Court N.Y. App. Term Decision date 1901-02-25 English

Delivered by BLANCHARD, J.

Contents

Majority

p. 803
(34 Misc. Rep. 202.)
HEINEMAN v. VAN STONE.
(Supreme Court, Appellate Term.
February 25, 1901.)

Headnote

Trial—Application for Discontinuance—Refusal.
Where plaintiff was absent when his case was called for trial, and Ms attorney applied for leave to discontinue, the refusal of the application constituted ground for reversing a judgment for defendant.
Appeal from municipal court, borough of Manhattan, Tenth district.
Action by lina Heineman against Frederick Van Stone. From a judgment in favor of defendant, plaintiff appeals.
Reversed.
Argued before ANDREWS, P. J., and O'GORMAN and BLANCHARD, JJ.
M. A. Lesser, for appellant.
J. N. Iinehan, for respondent.

When the case came up for trial the plaintiff was absent, and the plaintiff’s attorney applied to the court for leave to discontinue. The court denied the motion, and exception was duly taken. This was reversible error. The plaintiff had the right to discontinue at any time before the case was submitted, and a refusal on the part of the court to permit the discontinuance is a sufficient ground for the reversal of the judgment for the defendant. Goldberg v. Victor, 26 Mise. Rep. 728, 56 N. Y. Supp. 1044 . The judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.