Richard v. Nattional Distilling Co.

95 N.Y.S. 547

• Court: Appellate Terms of the Supreme Court of New York
• Decided: October 27, 1905
• Status: Published

Opinion

SCOTT, P. J.

It is always with great hesitation that we interfere with orders made upon motions which appeal to the discretion of the court below, and we do so only when it appears that an injustice may have been done by the order appealed from. It is quite evident that defendant would have no chance at all of establishing its defense unless it could avail itself of the testimony of the witness Van Emden. It is true that defendant’s attorneys did not take steps to secure his attendance until June 16th, but it is quite apparent that there was no intention or expectation on either side that the case would be tried until June 15th, The defendant might, indeed, have made earlier inquiries as to the possibility of securing Van Emden’s attendance; but, since the latter had left the city on June 5th, nothing was lost by delaying the inquiries. It is also quite clear that defendant’s attorneys could not secure Van Emden’s presence before June 29th, and, since they had no control over his movements, it would have been quite unsafe to stipulate to go to trial on the 29th, whether he was present or not. It may be that upon the merits defendant may fail in the action, but we cannot try that question, on this motion.

The order appealed from should, in our opinion, be so modified as to provide that defendant’s default and the inquest thereon be vacated and set aside,.and the cause restored to the calendar of the City Court for trial, upon payment by defendant to plaintiffs within five days of $10 costs of motion, the judgment and levy, if any, to stand meanwhile as security, and the order, as so modified, should be affirmed, without costs. All concur.