Opinion
April Term, 1901.
James D. Fessenden, for the appellant.
George G. Reynolds, for the respondent.
We think that section 1002 of the Code of Civil Procedure did not compel the appellant to move at a Special Term presided over by the learned justice who sat at the trial, inasmuch as the motion was not founded on an allegation of error in a finding of fact or ruling upon the law made on the trial. ( Fleischmann v. Samuel, 18 App. Div. 97; appeal dismissed, 154 N.Y. 731; Kehrley v. Shafer, 92 Hun, 196.) The controlling question in this case before the Special Term was whether a new trial should have been granted in the furtherance of justice. Modern practice is liberal to afford a full day in court. ( Glassford v. Lewis, 82 Hun, 48.) We think that the learned Special Term erred in not exercising its discretion to order a new trial. The case had been tried twice before without results, and had consumed the better part of three days on the first trial, while the plaintiff occupied about one and a half days on the second trial. It came on for a third trial after midday. The plaintiff called nine witnesses and the defendant four, and yet so rapid was the progress (and no criticism of undue haste is made against the learned trial justice) that some time between throe and a half o'clock and four o'clock of that day the plaintiff had closed his case, and the defendant's witnesses then in court were exhausted. A counsel for defendant inquired of the clerk of the court the probable hour of adjournment, and was told that the court, in all probability, would sit until the case was finished, whereupon the counsel summoned by telephone two proposed witnesses who were within the borough. Shortly before four o'clock counsel laid before the court the situation of affairs, stated that he had four disinterested witnesses who had objected to being kept from their business through the whole length of the trial; that the forecast had been made that the trial would last as long as the previous trials; that the witnesses, who were not in the employ of the defendant, had been notified, would be in court on the following morning, and he asked for a continuance until that time. This application was denied. Whereupon an associate counsel said that he had telephoned to two of the witnesses and that twenty minutes had elapsed since one had answered that he would come at once; that such witness would, probably, be in court within ten minutes, and that he believed that the other witness, who was in the borough, was on his way. Upon this statement counsel for the defendant requested a short suspension. The plaintiff's counsel was not called upon by the court, and neither assented nor objected, but the court, after asking whether a subpœna had been issued, and ascertaining that it had not, refused to permit any delay, and directed the defendant's counsel to sum up his case, which went to the jury, who returned a verdict of $5,000 against the defendant. The action involves the suit of a servant against his master for negligence, and the main contention was that the defendant was negligent in failing to establish and enforce proper rules to prevent the accident. It was an essential question whether it was practicable to adopt such rules which, if obeyed, would afford protection against such accident. ( Smith v. Lidgerwood Mfg. Co., 56 App. Div. 528; 67 N.Y. Supp. 533.) The missing witnesses were three superintendents and a foreman of other companies, respectively. They had attended throughout the first trial without subœnas, and throughout the second trial, and had testified at the latter. On that occasion they had been called at the end of plaintiff's case, but had demurred at such long detention from their business, and had promised to attend the third trial at an hour's notice. It is stated that they were the sole disinterested witnesses for the defendant. When the case was about to be tried they had been notified to hold themselves in readiness, and when the case actually came on at half after twelve o'clock they had been notified to appear on the following day at ten o'clock. The learned counsel for the respondent cites Gawthrop v. Leary (9 Daly, 353) as "a case very much like this, and is an authority directly in point." But that case presents a material difference, for VAN HOESEN, J., in his opinion, writes: "The trial went on, the case was closed and a verdict rendered without any suggestion to the court that the defendant desired a postponement on account of the unexpected absence of a material witness." The facts of this case are more like those stated in the opinion of DYKMAN, J., in Cahill v. Hilton (31 Hun, 114) although it is true that in that case Carpenter was a foreign witness. The entry of judgment on the verdict was not a bar to the motion ( Tracey v. Altmyer, 46 N.Y. 598; Code Civ. Proc. § 1005), nor do we see any insuperable objection in the fact that this motion was made while the appeal from the judgment was pending. The order is reversed, with ten dollars costs and disbursements, and a new trial is granted, and the judgment vacated, upon the condition that within ten days the appellant pay to the plaintiff the costs of the trial as taxed; otherwise it is affirmed, with ten dollars costs and disbursements.
All concurred, except GOODRICH, P.J., dissenting.
Order reversed, with ten dollars costs and disbursements, and new trial granted, and judgment vacated, upon condition that within ten days the appellant pay to the plaintiff the costs of the trial as taxed; otherwise, order affirmed, with ten dollars costs and disbursements.