Martin v. Hicks

13 N.Y. Sup. Ct. 74

Opinion

Davis, P. J.:

We are of opinion that no appeal lies directly to the General Term from, an order made at Circuit refusing to postpone the trial of a case. The correct practice in such cases is laid down in volume 3 of Wait’s Practice (at page 77), as follows : “ Where a party defendant feels himself aggrieved by a refusal to postpone the trial, whether such refusal be made on a trial by jury or a trial by the court, he may withdraw from the trial; and, if the trial proceeds, and the cause is decided against him, he may, upon affidavit showing the application to postpone, the papers upon which it was founded, its denial, and that a decision has been made against him, make a non-enumerated motion, at Special Term, to set aside such decision. He may also remain and try the case on the merits, and, in case of a decision against him, either .pursue the same course to obtain a new trial, or may, if the trial was by jury, under section 265, move at Special Term, on a case, for a new trial, alleging, as one of the grounds, the refusal to postpone the trial; or, if the trial was by the court, he may then, under section 268, appeal directly to the General Term, alleging, as cause for reversal, the refusal to postpone. (Howard v. Freeman, 3 Abb. [N. S.], 292; Ogden v. Payne, 5 Cow., 15; Hooker v. Rogers, 6 id., 577; People v. Vermilyea, 7 id., 369 ; Brooklyn Oil Works v. Brown, 38 How., 451; S. C., 7 Abb. [N. S.], 382; Miller v. Porter, 17 How., 526.)

The appeal from the order of the Circuit Court should, therefore, be dismissed, with costs.

Daniels and Brady, JJ., concurred.

Appeal dismissed, with costs.