Cummings v. Tinker — 78 N.Y.S. 1112

Majority

p. 1112

CUMMINGS, Respondent, v. TINKER, Appellant, et al.

(Supreme Court, Appellate Division, Fourth Department.

October 17, 1902.)

Headnote

Action by Grace A. Cummings against Adelbert D. Tinker, impleaded with others. From a judgment for plaintiff, defendant Tinker appeals.

Reversed.

The learned justice at special term, in the exercise of his discretion, erred in denying the motion of the appellant to re

Dissent

p. 1113

open the case and permit him to introduce additional testimony in his behalf. Order reversed, with $10 costs and disbursements.

(dissenting).

It fairly appears, from the affidavits read in behalf of the appellant himself upon the motion involved in this appeal, that his counsel understood before the trial what the witness Stoughtenburg was expected to testify to. It also appears that such counsel was fully apprised at or before the submission of the case, that respondent’s cqunsel claimed, and the stenographer’s official minutes showed, that said witness had not given the evidence which it is now claimed he was prepared and expected to give. Notwithstanding such knowledge, no motion was made to reopen the hearing then, or at any time thereafter until the case had been decided. Under such circumstances, I think it must be held that the motion to reopen was infected with laches, or, ■at least, that the learned trial justice, who was familiar with all of the proceedings, acted so clearly within the limits of a proper discretion in denying it that his order, here appealed from, should not be disturbed.