24 Misc. 180 | N.Y. App. Term. | 1898
The justice in his return explicitly states that the defendant, having made an application for the removal of the cause to the City Court, subsequently withdrew such application, and sought and obtained an adjournment of the trial. There is nothing in the record which is inconsistent with this statement, and the facts thus certified must, therefore,'be accepted as conclusive. A second application for the same purpose was made on the adjourned day. This was properly denied by the justice. The motion for removal made on the return day of the summons having been withdrawn, and an adjournment of the trial having been granted upon the request of defendant, the latter had then lost its right to a removal of the cause. § 3216, Code Civ. Pro.; Dinkel v. Wehle, 11 Abb. N. C. 124.
With respect to the trial, the record shows that the decision in favor of the plaintiff rests upon the determination of a question of fact, upon which the evidence was conflicting. Under such circumstances the appellate court will not .disturb the judgment below, unless it was obviously against the weight of evidence. We cannot say that such was the case here. There is but one exception which, in our opinion, calls for comment here. The plaintiff was the assignee of the claim in suit. His assignor, who was the chief witness in support of his case, was asked 'upon cross-examination this question: “ Q. Is it a fact that you expect to have whatever money comes out of this case, if any, less your counsel’s fees? ” The counsel for the plaintiff objected to this on the ground that it was immaterial, irrelevant and incompetent, which objection was sus
Gildersleeve and Giegerich, JJ„ concur.
Judgment affirmed, with costs.