Extein v. Kincus

Superior Court of Pennsylvania

Extein v. Kincus

69 A.2d 441, 165 Pa. Super. 591, 1949 Pa. Super. LEXIS 511

CourtSuperior Court of Pennsylvania

DecidedSeptember 29, 1949

DocketAppeal, 233

StatusPublished

Cited by2 cases

This text of 69 A.2d 441 (Extein v. Kincus) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Extein v. Kincus, 69 A.2d 441, 165 Pa. Super. 591, 1949 Pa. Super. LEXIS 511 (Pa. Ct. App. 1949).

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Opinion

Opinion by

Fine, J.,

Samuel Extein, appellee, instituted a suit in assumpsit against Herman Kincus, appellant, seeking the return of $2,500 representing a down payment made under an oral agreement for the purchase of appellant’s taproom business. An answer was filed denying the material averments and the matter proceeded to trial before a judge without a jury who after hearing found for the plaintiff for the full amount. At the conclusion of the trial and before judgment, appellant moved for and was denied a continuance on the ground that he had no opportunity to produce at the trial a witness who would have testified in his behalf. A motion for a new trial averring error in the refusal of a continuance was dismissed by the court below, wherefore this appeal.

The sole question raised by appellant is whether the court below abused its discretion in refusing a continuance in the circumstances disclosed by this record. Appellant inaccurately states that he did not have the opportunity to produce Philip Goldberg, his former attorney, as a witness in his behalf at the time of the trial. Appellant could have arranged for the presence of that *593 witness at tbe trial but for reasons known to bimself be did not even request tbe presence of Goldberg at that time; nor did he state to tbe court any reason for bis failure to have tbe witness present. Appellant and bis counsel knew of tbe existence of Goldberg’s testimony before trial and admittedly made no effort to subpoena him. Moreover, appellant did not seek a continuance prior to trial because of tbe absence of this witness. On tbe contrary, be voluntarily elected to proceed with tbe trial and take tbe chance of an unfavorable verdict without this evidence. He is, therefore, in no position to demand a re-trial because of bis own failure or neglect to move seasonably for a continuance. Jaczyszyn v. Paslawski, 147 Pa. Superior Ct. 97, 24 A. 2d 116; Marine Coal Company v. Pittsburgh, McKeesport and Youghiogheny Railroad Company, 246 Pa. 478, 92 A. 688.

Judgment affirmed.

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Opinion by

Fine, J.,

Samuel Extein, appellee, instituted a suit in assumpsit against Herman Kincus, appellant, seeking the return of $2,500 representing a down payment made under an oral agreement for the purchase of appellant’s taproom business. An answer was filed denying the material averments and the matter proceeded to trial before a judge without a jury who after hearing found for the plaintiff for the full amount. At the conclusion of the trial and before judgment, appellant moved for and was denied a continuance on the ground that he had no opportunity to produce at the trial a witness who would have testified in his behalf. A motion for a new trial averring error in the refusal of a continuance was dismissed by the court below, wherefore this appeal.

The sole question raised by appellant is whether the court below abused its discretion in refusing a continuance in the circumstances disclosed by this record. Appellant inaccurately states that he did not have the opportunity to produce Philip Goldberg, his former attorney, as a witness in his behalf at the time of the trial. Appellant could have arranged for the presence of that *593 witness at tbe trial but for reasons known to bimself be did not even request tbe presence of Goldberg at that time; nor did he state to tbe court any reason for bis failure to have tbe witness present. Appellant and bis counsel knew of tbe existence of Goldberg’s testimony before trial and admittedly made no effort to subpoena him. Moreover, appellant did not seek a continuance prior to trial because of tbe absence of this witness. On tbe contrary, be voluntarily elected to proceed with tbe trial and take tbe chance of an unfavorable verdict without this evidence. He is, therefore, in no position to demand a re-trial because of bis own failure or neglect to move seasonably for a continuance. Jaczyszyn v. Paslawski, 147 Pa. Superior Ct. 97, 24 A. 2d 116; Marine Coal Company v. Pittsburgh, McKeesport and Youghiogheny Railroad Company, 246 Pa. 478, 92 A. 688.

Judgment affirmed.

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Bluebook (online)

69 A.2d 441, 165 Pa. Super. 591, 1949 Pa. Super. LEXIS 511, Counsel Stack Legal Research, https://law.counselstack.com/opinion/extein-v-kincus-pasuperct-1949.

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