Gaskell v. Cowan — 70 N.Y. St. Rep. 446

Majority

p. 446

William Gaskell et al., Resp’ts, v. Stuart W. Cowan, App’lt.

(New York City Court, General Term,

Filed October 29, 1895.)

Headnote

Trial—Proceedings in absence of defendants.

The question whether or not the trial justice is right in ordering the trial to proceed during the defendant’s absence, is addressed to his discretion, and, unless it appears that he acts arbitrarily, the court will not be justified in reversing the judgment therefor.

Appeal from a judgment in favor of plaintiffs.

W. B- Beach, for app’lt; Estes, Bernard & Tiffany, for-resp’ts.

We find no error in the admission or exclusion of evidence. The question whether or not the trial justice was right in ordering the trial to proceed during the defendant’s absence was addressed to his discretion, and, unless it appears that he acted arbitrarily, we would not be justified in reversing the judgment. We must assume that the. motion to adjourn was argued for and against by the attorneys herein, as is usually the case, and that, in view of the affidavit submitted by the defendant that plaintiffs’ counsel was permitted to submit in the form of affidavits his oral arguments made at the time defendant’s counsel moved the adjournment, which was done in the light of these affidavits, we cannot say that the action of the trial justice in ordering the trial was even ill advised; in fact, they justify his-course of conduct.

We therefore affirm the judgment, with costs.