O'Brien v. King, 254 A.D. 318

O'Brien v. King

254 A.D. 318 | N.Y. App. Div. | 1938

Per Curiam.

The judgment dismissing the complaint recites that the plaintiff applied upon the call of the calendar for an adjournment of the trial “ without good cause or sufficient legal reason shown therefor.” On this appeal from such order we are not passing upon the merits of this stockholder’s representative action. A question of practice is involved.

The plaintiff, bis witness Alvah H. Cole, and the defendant Philip M. King are the survivors of five original stockholders. The record discloses that at the time the application for an adjournment was made plaintiff was confined to a hospital in New Haven, Conn., and the witness Cole was being treated for “ myocardiac *319degeneration with angina pectoris.” His physician advised avoidance of excitement or any nervous or mental strain, and, further, advised “ a trip to Florida for the betterment of his health.” Plaintiff’s attorney and an attorney associated with the latter in this action have made affidavit that plaintiff and his witness will offer testimony most material to the cause of action, and without such testimony the plaintiff cannot safely proceed. The prosecution of the action may not have been as diligent as the facts would seem to warrant, but there is a dispute between the parties as to the responsibility for the delay. It does not appear that respondent would have been prejudiced in any way by a postponement of the trial. Under all the circumstances, we think a reasonable adjournment should have been allowed.

The order and judgment appealed from should be reversed, without costs, the motion granted and the cause restored to the calendar.

Present — Martin, P. J., O’Malley, Glennon, Untermysr and Dore, JJ.; O’Malley, J., dissents.

Judgment and order reversed, without costs, the motion granted and the cause restored to the calendar. Settle order on notice.