Majority
p. 374SCHWARZSCHILD & SULZBERGER CO. v. NEW YORK CITY RY. CO. (Supreme Court, Appellate Term. November 10, 1904.) Argued before FREEDMAN, P. J„ and BISCHOFF and FITZGERALD, JJ.
Headnote
1. Adjournment—Absence of Witness—Refusal of Adjournment—Prejudice.When a case was called after 6 p. m., a witness for defendant, who had attended all day, bad left, and the court refused an adjournment on the ground that the trial had commenced on the answer “Ready” on the part of both sides, thereby excusing counsel from making affidavit as to the materiality of the testimony of the absent witness. Held, that defendant was prejudiced so as to warrant the granting of a new trial on appeal.
Appeal from Municipal Court.
Action by the Schwarzschild & Sulzberger Company against the New York City Railway Company. From a judgment in favor of plaintiff, defendant appeals.
Reversed.
Henry W. Gooddard and William E. Weaver, for appellant.
' Emanuel S. Cahn, for respondent.
In our opinion, the defendant was prejudiced by the court’s refusal to grant an adjournment on account of the absence of one of defendant’s witnesses. The case was called for trial after 6 o’clock in the afternoon, and it appears that the witness, after being in attendance all day, had left. Counsel was excused from making affidavit to the materiality of the testimony to be given by reason of the court’s distinct ruling that an adjournment would be refused because the trial had commenced upon the answer “Ready” on the part of both
p. 375
sides; and in view of the circumstances disclosed, taken with the unusual hour for calling the case for trial, we conclude that this court should grant a new trial in discretion.
Judgment reversed, and a new trial ordered, with costs to appellant to abide the event.