Gallaudet v. Steinmetz — 45 N.Y. Super. Ct. 239

Majority

p. 239

PETER W. GALLAUDET, Plaintiff and Respondent, v. WILLIAM G. STEINMETZ, Defendant and Appellant.

Before Sedgwick and Van Vorst, JJ.

Decided April 7, 1879.

Headnote

The decision of the judge made at trial term, upon the motion of a party for the postponement of the trial on account of the absence of a material witness, where an exception is taken, is a subject of review by the general term.

The party aggrieved may, upon a case made, containing his exception, move at special term for a new trial, or he may present the exception for review by appeal from the judgment.

In either case the affidavits used on the motion properly form a part of the case (Gregg v. Howe, 37 Super. Ct. 420).

Appeal from order denying defendant’s motion for re-settlement of case.

F. E. Dana, for appellant.

W. W. Niles, for respondent.

The practice in cases like that involved in this appeal, is settled, in this court. The decision made by the learned judge, upon the motion of the defendant’s counsel, before the impaneling of the jury, upon affidavits, for the postponement of the trial on the ground of the absence of a material witness, and to which decision an exception was taken, is the subject of review. The defendant may, upon a case containing his exceptions to the decision, move for a new trial at special term, or present the exceptions for review by appeal from the judgment. In either case the affidavits used on the motion probably form a part of the case (Gregg v. Howe, 37 Super. Ct. 420). The sufficiency of the affidavits cannot be determined on this appeal. ' The defendant’s case should be re-settled by incorporating therein the affi.davits used on the motion to postpone, and his exceptions. The order appealed from is reversed, with $10 costs, and disbursements.

Sedgwick, J., concurred.