Smith v. New-York Insurance — 1 N.Y. Super. Ct. 223

Majority

p. 223

Gershom Smith versus The New-York Insurance Company.

Oct. Term, 1828.

Headnote

Where an important witness is absent from the country, and will not return until' several terms have elapsed, this court will put off a cause for a reasonable period, notwithstanding the delay may comprehend more than one term.

Mr. O. Hoffman, for the defendants,

moved to put off the trial of this cause for several terms. He read an affidavit, showing that an important witness for the defendants was absent at sea, and was not expected to return for some months to come; but he would return before a commission could reach him, or be of service.

The motion is no more than reasonable when addressed to this court, which sets at such short intervals, that witnesses who are absent have little chance of return before the cause is brought to trial. In the Supreme Court, where the terms are several months apart, a different practice may well prevail, and there it may be sufficient in general to put off a cause from term to term only. But the witness in this cause cannot be expected to return, considering the place to which he is gone, before the time specified in the plaintiff’s affidavit, and of course, not until long after the next term of this court. As that time is reasonable, considering the circumstances of the case, the motion must be granted.

Motion granted.

[E. Anthon, Att'y for the plff. Hoffman and Tallman, Att'ys for defts.]