Opinion
June, 1907.
Nathan, Leventritt Perham (Henry A. Blumenthal, of counsel), for appellant.
Adam F. Stricker, for respondents.
When this case was called for trial, on December 18, 1906, the defendant's attorney moved for an adjournment until December twenty-fourth, and submitted two affidavits and a bond with two sureties under section 194 of the Municipal Court Act. The ground of the application was that the defendant, who it was claimed was a material witness, was then absent in Porto Rico. The plaintiffs opposed the motion upon the ground that the defendant had been subpœnaed as a witness and the adjournment was thereupon refused. The affidavit of the defendant contains an affidavit of merits and recites that, at the time this action was instituted, he had an important engagement in Porto Rico; that issue was joined November nineteenth and was set down for November twenty-sixth; that he was then ready for trial, but the case was adjourned until November twenty-eighth; that on that day he was ready for trial but the case was again adjourned until December sixth; that prior to that day he had engaged passage to Porto Rico for December first, and that he could not postpone his business there for a longer time; that he would be able to return to this city as early as December twenty-third; that none of said adjournments were made necessary by any act of his, and that he is a material and necessary witness on the trial; and the affidavit fully sets forth the nature of his testimony and it clearly is material. The affidavit of the defendant's attorney is also to the same effect, and he also testifies that it will be impossible to safely proceed to trial without the testimony of the defendant. We think, under this proof, which was in no way contradicted by the plaintiffs, the adjournment from December eighteenth to the twenty-fourth, a period of but six days, should have been granted. A reading of the record strongly supports this position, as it is clear that the defendant's testimony might have a material effect upon another trial. The interests of justice require a reversal of the judgment and the ordering of a new trial.
FITZGERALD and GOFF, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.