Dean v. Halliburton

-Judgment and order reversed upon the law and a new trial granted, with costs to appellant to abide the event, for error in denying defendant’s motion to postpone the trial because of the absence of material witnesses. Of these witnesses, the wife and daughter of the alleged incompetent were not without justification in repairing to the bedside of their dying husband and father whose death occurred three days after the trial. So that their absence was undoubtedly in good faith. The question is properly presented on the appeal taken from the judgment where the motion to postpone was made, as was here the ease, during the trial. (2 Nichols N. Y. Prac. § 1572. See, also, Gregg v. Howe, 37 N. Y. Super. Ct. 420; Gallaudet v. Steinmetz, 6 Abb. N. C. 224.) The stipulation that either party might read the testimony of any witness given on the former trial did not comprehend the testimony of the absent witnesses. It was for the erroneous exclusion of testimony that they might have been expected to give that the former judgment was reversed. Hence, reading their former testimony would not reach the testimony ruled out.