Knoble v. Traub

New York Supreme Court

Knoble v. Traub

180 Misc. 754, 43 N.Y.S.2d 449, 1943 N.Y. Misc. LEXIS 2238

DecidedJuly 15, 1943

StatusPublished

This text of 180 Misc. 754 (Knoble v. Traub) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Knoble v. Traub, 180 Misc. 754, 43 N.Y.S.2d 449, 1943 N.Y. Misc. LEXIS 2238 (N.Y. Super. Ct. 1943).

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Opinion

Colden, J.

This is a motion by the defendants for an order staying all proceedings herein including the trial of the actions until the cessation of hostilities between the United Nations and the Axis, or until such time as the defendant Traub may obtain passage from Great Britain to the United States.

íhe application is predicated principally upon the claim that the defendant Traub, who is an officer of the corporate defendant and who has knowledge of practically all of the transactions embraced in the action, has made repeated efforts to obtain transportation to this country but has been unable to do so; that to have the action “tried without the presence of Edmund Traub and without the jury having an opportunity to observe the witnesses and weigh the merits of their various contentions Avould be extremely unfair.”

The plaintiff vigorously objects to the relief herein prayed for. He points out that this action has been at issue since February, 1942, and has now been adjourned until the latter part of September, 1943, for trial. He contends that there are no facts set forth showing what efforts the defendant Traub made to obtain passage to this country and Avhy his deposition will not be sufficient.

In the reply affidavit the defendants urge that they be permitted a stay for six months pending further efforts by Mr. Traub to come to this country and that in the meantime they ■will proceed Avith their preparations for trial.

This court is of the opinion that the application should be denied. In the first place it is clear that the defendants will in any event have to take a number of depositions of Avitnesses, and there appears to be no reason why these cannot be taken at once. Second, no facts are shown as to what efforts Mr. Traub has made to obtain passage and what the facts are as to the possibilities in the near future of obtaining passage; nor has it been shown Avhy the deposition of Mr. Traub will not be sufficient to protect the interests of the defendants. By the defendants’ own supporting affidavit it is stated that Mr. Traub is of advanced age and not in good health. It may be that the condition' of his health will make it impossible for him ever to come to this country. Upon the present shoAving, it Avould be an improvident exercise of discretion for this court to grant a stay. The defendants should proceed with all the steps they deem necessary to prepare for trial and if they are not ready [756]*756at the time set for trial, they should present the facts to the Trial Justice and apply for an adjournment until such time as they are ready. Upon a showing of all the facts including the steps that have been taken as hereinbefore suggested, the court will have an adequate basis for making a determination consistent with the exigencies of the situation and the requirements of justice, including the plaintiff’s right to have a speedy determination. Submit order.

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Colden, J.

This is a motion by the defendants for an order staying all proceedings herein including the trial of the actions until the cessation of hostilities between the United Nations and the Axis, or until such time as the defendant Traub may obtain passage from Great Britain to the United States.

íhe application is predicated principally upon the claim that the defendant Traub, who is an officer of the corporate defendant and who has knowledge of practically all of the transactions embraced in the action, has made repeated efforts to obtain transportation to this country but has been unable to do so; that to have the action “tried without the presence of Edmund Traub and without the jury having an opportunity to observe the witnesses and weigh the merits of their various contentions Avould be extremely unfair.”

The plaintiff vigorously objects to the relief herein prayed for. He points out that this action has been at issue since February, 1942, and has now been adjourned until the latter part of September, 1943, for trial. He contends that there are no facts set forth showing what efforts the defendant Traub made to obtain passage to this country and Avhy his deposition will not be sufficient.

In the reply affidavit the defendants urge that they be permitted a stay for six months pending further efforts by Mr. Traub to come to this country and that in the meantime they ■will proceed Avith their preparations for trial.

This court is of the opinion that the application should be denied. In the first place it is clear that the defendants will in any event have to take a number of depositions of Avitnesses, and there appears to be no reason why these cannot be taken at once. Second, no facts are shown as to what efforts Mr. Traub has made to obtain passage and what the facts are as to the possibilities in the near future of obtaining passage; nor has it been shown Avhy the deposition of Mr. Traub will not be sufficient to protect the interests of the defendants. By the defendants’ own supporting affidavit it is stated that Mr. Traub is of advanced age and not in good health. It may be that the condition' of his health will make it impossible for him ever to come to this country. Upon the present shoAving, it Avould be an improvident exercise of discretion for this court to grant a stay. The defendants should proceed with all the steps they deem necessary to prepare for trial and if they are not ready [756]*756at the time set for trial, they should present the facts to the Trial Justice and apply for an adjournment until such time as they are ready. Upon a showing of all the facts including the steps that have been taken as hereinbefore suggested, the court will have an adequate basis for making a determination consistent with the exigencies of the situation and the requirements of justice, including the plaintiff’s right to have a speedy determination. Submit order.

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Bluebook (online)

180 Misc. 754, 43 N.Y.S.2d 449, 1943 N.Y. Misc. LEXIS 2238, Counsel Stack Legal Research, https://law.counselstack.com/opinion/knoble-v-traub-nysupct-1943.