135 N.Y.S. 70 | N.Y. App. Div. | 1912
The complaint alleges that defendant and one Vivie were formerly copartners; that on December 31, 1901, defendant entered into a written agreement with said Vivie that said defendant would pay and discharge all the debts and liabilities Of said firm, and particularly drafts drawn by said firm on a certain German bank; that said firm being indebted to said bank for drafts drawn on it, said bank sued the said firm and recovered judgment in the State Court at Hamburg, in Germany. Plaintiff sues as assignee of said bank. It is evident that it was essential to the plaintiff’s case to prove the recovery of the judgment in Germany, and its scope and effect as a judgment against the copartnership. Plaintiff attempted to supply this proof by the production of what purported to be an authenticated copy of the German j udgment. This was obj ected to upon the ground that the record offered was not properly authenticated. At the Close of the testimony plaintiff moved
The application for leave to withdraw a juror is - in effect an application that the trial be declared a mistrial and that-the cause be adjourned for trial to a future day. It is addressed to the sound discretion of the justice presiding at the trial, and his exercise of this discretion will rarely ¡be reviewed by an appellate court. (Cattano v. Metropolitan St. R. Co., 173 N. Y. 565; Chesebrough v. Conover, 140 id; 382.) Indeed the question will seldom come before an appellate court where the motion- has been granted, because such motions are usually made verbally at the trial and no record is made except an entry in the clerk’s minutes. .
In legal contemplation this action was still pending when the motion was made. The court combining, by consent, the functions hoth of the justice and the jury, still held the cause under advisement and was awaiting its final submission by the parties. The November term, although ended for other business, must be deemed to have been continued so far as concerns this case. The court, therefore, had the whole matter before it precisely as it would have had if the trial had actually been continued before court and jury down to the moment that the motion for leave to withdraw a juror was made, and might properly entertain any motion which could have been made, in case of a continued trial, before the cause was finally submitted. The motion to withdraw a juror could have
The order appealed from must, therefore, be affirmed, with ten dollars costs and disbursements.
Ingraham, P. J., McLaughlin, Clarke and Dowling, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.