60 A.D. 467 | N.Y. App. Div. | 1901
■ We think that section 1002 of the Code of Civil Procedure did not compel the appellant to move at a Special Term presided over by the learned justice who sat at the trial, inasmuch as the motion was not founded on an allegation of error in a finding of fact or ruling upon the law made on the trial, (Fleischmann v. Samuel, 18 App. Div. 97; appeal dismissed, 154 N. Y. 731; Kehrley v. Shafer, 92 Hun, 196.) The controlling question in- this case before the Special Term was whether a new trial should have been granted in the furtherance of justice. Modern practice is liberal to afford a full day in court. (Glassford v. Lewis, 82 Hun, 48.) We think that the learned Special Term erred in not exercising its discretion to order a new trial. The case had been tried twice before without results, and had consumed the better part of three days on the first trial,, while the plaintiff occupied about one and a half days on the second trial. It came on for a third trial after midday. The plaintiff called nine witnesses and the defendant four, and yet so rapid was the progress (and no criticism of Undue haste is made against the learned trial justice) that some time between three and a half o’clock and four o’clock of that day the plaintiff had closed his case, and the defendant’s witnesses then in court were exhausted. A counsel for defendant inquired of the clerk of the court the probable hour of adjournment, and was told
All concurred, except Goodrich, P. J., dissenting,
Order reversed,-with ten dollars costs and disbursements, and new trial granted, and judgment vacated, upon condition that within ten days the appellant pay to the plaintiff the costs of the trial as taxed ; otherwise, order affirmed, with ten dollars costs and disbursements.