Perkins v. Whitney — 34 N.Y. St. Rep. 951

Majority

p. 951

Julietta Perkins, App’lt, v. William W. Whitney et al., Resp’ts.

(Supreme Court, General Term, Second Department,

Filed December 8, 1890.)

Headnote

1. Trial—Postponement—Commission to examine witnesses.

In an action to establish a will claimed to be forged, after a delay of three years to await the determination of other actions affecting said will and after the case had been set down peremptorily for trial, plaintiff, claiming to have discovered an important witness in Washington, moved fcr a commission to examine him and a postponement until its return, which motions were denied. Reid, that, in view of the importance of the witness to plaintiff, and the fact that no injury could result to defendants from a postponement for the short period required for the return of the commission, the denial of the motions was an unwise exercise of discretion.

2. Costs—Extra allowance.

On the dismissal of such an action no extra allowance can be granted, as there is no value in the subject matter involved upon which it can be computed.

(Barnard, P. J., dissents.)

Appeal from judgment and three orders: (1) The judgment dismissing the complaint herein; (2) the order denying appellant’s application for a commission to take the testimony of witnesses residing and being in the city of Washington ; (3) the order denying appellant’s application for the postponement of the trial of this cause at special term; and (4) from the order granting to the respondents an extra allowance.

Action brought under § 1861 of the Code to establish the will of Myra Clark Gaines.

This action was commenced -November 5, 1886, answers were interposed December 31, 1886, the judgment overruling the demurrers was entered September 3, 1887. Replies were served September 30, 1887.

The case was noticed for argument; was adjourned a great number of times. The case was called at the special term on the first Monday of December, 1889. On the application of plaintiff’s attorney it was adjourned until the first Monday of January, 1890, and was set peremptorily for trial for that day. The first Monday of January, 1890, was the sixth day of January.

On January 2, 1890, the plaintiff obtained an order to show cause returnable January 6, 1890, why a commission should not

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issue to Washington, and why the trial should not be stayed until the return of said commission. Such motion was denied, but the trial was postponed until January 8, 1890, to enable plaintiff to procure the attendance of such witnesses.

On January 8th plaintiff appeared in court without such witnesses and made an application, on affidyavits, that the trial be postponed. This application was denied and an order to that effect was entered. Plaintiff’s attorney thereupon refused to proceed with the trial, and on motion of defendant’s attorney the complaint was dismissed.

An extra allowance of $500 was granted by the court.

John A. Grow, for app’lt; William T. Gilbert (Jasper W Gilbert, of counsel), for resp’ts.

In this action we have for determination four appeals, one from the judgment dismissing the plaintiff’s complaint,, one from the order denying the motion of the plaintiff for a postponement of the trial of the action at the special term, one from the order denying the application of the plaintiff for a commission to take the testimony of a witness in the city of Washington and one from an order granting an allowance against the plaintiff in addition to costs.

We find all these appeals meritorious, but the judgment was by default and relief from that cannot be afforded by the general term. The action was commenced in November, 1886, to establish a will of Myra Clark Grain es and the trial was delayed to await the decision of actions pending in the supreme court of the United States which were finally decided in May, 1889.

The plaintiff is not alone chargeable with such delay, because it was within the power of the defendants to bring the cause to trial at any term of the court after it was at issue, and it was upon the calendar for trial until December, 1889.

Then upon the application of the plaintiff the trial was postponed but the court set the cause for trial on the first Monday of January, 1890.

On the second day of the court the plaintiff .presented an affidavit to the court in which she said among other things that two or three weeks before that time she had learned that a person whom she named, residing in the city of Washington, was an important witness for her upon the trial of this action, and she asked for the issuance of a commission to take the testimony of such witness and a postponement of the trial until the return of such commission. Both applications were denied and we deem their denial an unwise exercise of the discretion of the court.

The delay requested was but short, the testimony of the witness was important to the plaintiff and no injury could result to the defendants from a postponement of the trial for the short period required for the execution and return of the commission.

The order for an allowance was erroneous because there was no value in the subject matter involved in the action upon which it could be computed and no order of an additional allowance can be made except upon the sum recovered or claimed or the value

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of the subject matter involved in the action. Conaughty v. The Saratoga County Bank, 92 N. Y., 401 , and cases there cited.

The orders appealed from should all be reversed, with ten dollars costs and the disbursements on all the appeals from the orders.

Pratt, J., concurs; Barnard, P. J.; dissents.