A. D. Granger Co. v. Universal Machinery Corp.

179 A.D. 353, 165 N.Y.S. 820, 1917 N.Y. App. Div. LEXIS 9381

Opinion

Per Curiam:

The defendant’s counsel in good faith awaited the presence of the defendant’s general manager from London, who at a time was ill and at all times threatened by the dangers of ocean travel, while some correspondence with him was lost, perhaps by depredations upon transatlantic shipping. Hence, it cannot be said that there was laches. The acceleration of the cases on the calendar also has to do with the matter. The plaintiff appears to be fully secured. In such view, it seems better not to place the defendant’s counsel in the position of foregoing a motion for a continuance as the condition of taking his client’s evidence by commission, but to leave the decision of that to the trial court, who will hear specifically what defendant would prove by the witness in London and measure the necessity of that evidence by the plaintiff’s offer to stipulate concerning it. There should be due regard for the conditions that beset the defendant.

The order should be modified by striking out the condition, and as so modified affirmed, without costs.

Jenks, P. J., Thomas, Stapleton, Mills and Rich, JJ., concurred.

Order modified by striking out the condition, and as so modified affirmed, without costs.