Grahams v. Morton — 6 Wend. 552

Majority

p. 552

Grahams vs. Morton.

Headnote

To stay a hearing before referees, on account of the absence of a material witness, application must be made to this court or to the referees; a commissioner has no power to stay the hearing.

Motion to vacate order. This cause ivas referred on the 9th June, and noticed for hearing before the referees on the 7ill July, on which day the defendant, on an affidavit that a material witness was absent, and would probably be absent for three months, obtained an order from the recorder of Nevv-York postponing the hearing until the 7th October next. The order was not served until late in the day on which it was obtained, the plaintiffs had subpoenaed their witnesses, and a number of them attended, and the plaintiffs were prepared to proceed to the hearing. On this state of facts the plaintiffs moved to vacate the order, and for the costs of preparing for the hearing and of this motion.

D. Graham, jun. for the plaintiffs.

J. Lynch, for the defendant.

p. 553

By the Court,

The recorder had no authority to make the order. Application should have been made to this court, Sudam v. Swart, 20 Johns. R. 476, or to the referees on the day appointed for the hearing, they having the right to adjourn the same from time to time as may be necessary. 2 R. S. 384, § 43. The order must be vacated, and the defendant must pay the costs of the plaintiffs for preparing for the hearing; he should have ascertained the absence of his witness and given notice of the fact, so as to have prevented the plaintiff from incurring unnecessary expense, and he must pay the costs of this motion.