Martin v. Hicks — 13 N.Y. Sup. Ct. 74

Majority

p. 74

ROBERT MARTIN, as Executor, etc., Respondent v. CATHERINE NESTOR ENNISMON HICKS, Appellant.

Headnote

Order refusing to postpone trial — appeal from — remedy.

No appeal lies directly to tlie General Term from an order made at the Circuit refusing- to postpone the trial of a case.

Tlie remedy is, in tlie first instance, by non-enumerated motion at Special Term.

Appeal from order made at the Circuit denying a motion to postpone the trial of the above entitled action.

John A. Wright. for the appellant.

Joseph Laroque, for the respondent.

We are of opinion that no appeal lies directly to the General Term from, an order made at Circuit refusing to postpone the trial of a case. The correct practice in such cases is laid down in volume 3 of Wait’s Practice (at page 77), as follows : “ Where a party defendant feels himself aggrieved by a refusal to postpone the trial, whether such refusal be made on a trial by jury or a trial by the court, he may withdraw from the trial; and, if the trial proceeds, and the cause is decided against him, he may, upon affidavit showing the application to postpone, the papers upon which it was founded, its denial, and that a decision has been made against him, make a non-enumerated motion, at Special Term, to set aside such decision. He may also remain and try the case on the merits, and, in case of a decision against him, either .pursue the same course to obtain a new trial, or may, if the trial was by jury, under section 265, move at Special Term, on a case, for a new trial, alleging, as one of the grounds, the refusal to postpone the trial; or, if the trial

p. 75

was by the court, he may then, under section 268, appeal directly to the General Term, alleging, as cause for reversal, the refusal to postpone. (Howard v. Freeman, 3 Abb. [N. S.], 292; Ogden v. Payne, 5 Cow., 15 ; Hooker v. Rogers, 6 id., 577; People v. Vermilyea, 7 id., 369 ; Brooklyn Oil Works v. Brown, 38 How., 451 ; S. C., 7 Abb. [N. S.], 382; Miller v. Porter, 17 How., 526 .)

The appeal from the order of the Circuit Court should, therefore, be dismissed, with costs.

Daniels and Brady, JJ., concurred.

Appeal dismissed, with costs.