Mattera v. Knickerbocker Ice Co.

Judgment affirmed, without costs. We are of the opinion that the defendant should have had its witness in court at the time the case was called for trial; furthermore, the witness not being in court, it was the duty of the defendant’s attorney to'have called the court’s attention to the absence of this witness at the time the case was called for trial. In addition to this, the moving papers fail to show what the missing witness would have testified to if present. Lazansky, P. J., Young, Kapper and Tompkins, JJ., concur; Carswell, J., dissents and votes for reversal and a new trial.