Schaffer v. Schaffer — 24 N.Y. St. Rep. 645

Majority

p. 645

Henrietta Schaffer, App’lt, v. Isaac Schaffer et al., Resp’ts.

(Supreme Court, General Term, First Department,

Filed May 24, 1889).

Headnote

Complaint—Dismissal of—When proper—Continuance' in discretion OF TRIAL court.

After several applications made by plaintiff for a postponement, all of which were denied, the cause was finally reached for trial, and plaintiff’s attorney made an application for further postponement on the ground of plaintiff’s illness. A postponement was granted. Subsequently, affidavits were produced and evidence was taken by the trial judge; and he being satisfied that the application of plaintiff was for delay only, and not made in good faith, refused a further postponement, and permitted defendants to take a dismissal of the complaint. Held, that there was no unwarrantable exercise of the discretionary power of the trial judge, inasmuch as plaintiff can commence her suit again upon payment of costs.

Appeal from an order denying the plaintiff’s motion to set aside an order refusing to postpone the trial of the action, and dismissing the complaint, and to vacate subsequent proceedings by the defendants, and to restore the case to the calendar for trial.

George W. Miller, for app’lt; John O. Mott, for resp’ts.

After an application made by the plaintiff to postpone the trial of the case, the court at special term fixed the day peremptorily for the first Monday of November, 1888. The cause was not, however, again called for trial until November, 19th. At the last mentioned time the defendants were ready and desirous of proceeding, but the plaintiff made an application to the court that the case go Over, which application was denied.

The cause was again on the day calendar on November twenty-second, whereupon the plaintiff’s counsel again asked that it be put over the term, which application was also denied. Finally, on November twenty-sixth, the plaintiff’s attorney again applied for postponement. Again was the trial set down peremptorily for the twenty-eighth day of November, but the case did not make its appearance again upon the day calendar, until December fifth, at which time the cause was marked ready, without objection on the part of the plaintiff’s attorney. On December seventh, when the cause was reached for trial, the plaintiff’s attorney made an application for further postponement on the ground of the illness of the plaintiff. A postponment was had until the tenth of December, to enable the defendants to ascertain the true condition of the plaintiff’s health, and subsequently affidavits were produced, and some oral evidence was taken by the trial judge. Being satisfied that the application of the plaintiff was for delay only, and not made in good faith, he refúsed a further postponement, and. permitted the defendants to take a dismissal of the complaint.

On the whole, we are of the opinion that there was no

p. 646

unwarrantable exercise of the discretionary power possessed by the trial judgej, and that the special term was correct in declining to revise that determination. From the papers before us, it does .not appear that any right of action will be lost to the plaintiff, and that she will be unable upon the payment of the costs of the action to begin her suit again if she is so advised.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

All concur.