| The Superior Court of New York City | Apr 15, 1879
The practice in cases like that involved in this appeal, is settled in this court. The decision made by the learned judge upon the motion of the defendant’s counsel, before the impaneling of the jury, upon affidavits for the postponement of the trial, on the ground of the absence of a material witness, and to which decision an exception was taken, is the subject of review. The defendant may, upon a case containing his exceptions to the decision, move for a new trial at special term, or present the exceptions for review by appeal from the judgment. In either case the affidavits used on the motion properly form a part of the case (Gregg v. Howe, 37 Super. Ct. 420). The sufficiency of the affidavits cannot be determined on this appeal.
The defendant’s case should be re-settled by incorporating therein the affidavits used on the motion to postpone, and his exceptions. The order appealed from is reversed, with $10 costs, and disbursements.