53 A.D.2d 743 | N.Y. App. Div. | 1976
Appeal from a judgment of the Supreme Court, entered June 18, 1975 in Ulster County, upon a verdict rendered at a Trial Term in favor of plaintiffs. In December, 1971 plaintiff John R. Fitzsimmons purchased a funeral home located in Margaretville, New York, from one Everett Herrick. In October, 1970 Mr. Herrick had purchased a hoist from defendant Kelco Supply Company which had been manufactured by appellant Wilder Manufacturing Co., Inc. The hoist, as advertised, consisted of a ceiling unit which enclosed the motor and gears, and from which hung six flexible straps. The straps, three on each side, when connected together, were to be used to lift caskets or bodies in a sling-like manner. The hoist was installed by Mr. Herrick on the garage ceiling and utilized to lift caskets from the floor of the garage up to the casket showroom, a distance of seven or eight feet. In installing the hoist, Mr. Herrick had modified its design by attaching the straps to a cage made from angle iron and which rested on a four-foot by eight-foot wooden platform, thus transforming the hoist into an elevator. On July 14, 1972 plaintiff John R. Fitzsimmons and his assistant placed a casket on a dolly and rolled it onto the hoist at the second floor showroom level. Both men got on and started down to the garage floor. After descending approximately one foot, the hoist suddenly dropped to the floor causing the injuries to plaintiff Fitzsimmons which were the basis of this action. The complaint set forth causes of action based upon (1) negligence on the part of Wilder in the "design, manufacture and selection of components for the hoist” and (2) breach of warranty in that defendants had warranted that the hoist "was of merchantable quality and reasonably fit for use in lifting and lowering loads up to 1,000 lbs.” The jury returned a verdict of no cause of action against defendant Kelco, but awarded plaintiffs John R. Fitzsimmons and Eileen Fitzsimmons (for loss of services) damages against appellant Wilder in the sums of $25,000 and $5,000 respectively. The primary claim of defendant Wilder on this appeal is that the trial court erred in refusing to grant it an adjournment so that it could produce a necessary expert witness. The trial commenced on June 9, 1975. Plaintiffs produced an expert who testified that the hoist fell because one of the components in the lifting mechanism was unsuitable. On Friday, June 13, Wilder planned to call its own expert witness. When the expert failed to appear at the scheduled time of 2:00 p.m., Wilder’s attorney advised the court that the witness was expected momentarily. A short recess was ordered, but, after waiting more than one and one-half hours, the Trial Judge adjourned the trial until Monday morning, June 16, at 10:00 a.m. The expert did not appear at 10:00 a.m. and a adjournment was granted until 11:00 a.m. The court was then advised that the expert "would surely be available at noon”. The witness, who was then testifying in Dutchess County Court, did not show up at noon. At 12:04 p.m. the Trial Judge stated for the record that he had just received a telephone call from the Dutchess County Court Judge, before whom the defendant’s expert was then testifying, who advised him, among other things, "that the witness will not be available”. Over the opposition of the attorney for defendant Wilder, the court ordered a resumption of the trial. The court denied a renewed motion for an adjournment just prior to summations and the case went to the jury without the testimony of Wilder’s expert. A request for an adjournment is a matter within the sound discretion of the trial court (People v Oskroba, 305 NY 113; People v Jackson, 111 NY 362).