Elish v. Rose

The trial court’s comments upon plaintiffs’ case were warranted, as was his observation that the alleged illness of plaintiffs’ counsel came at an opportune time for his clients. Also, the doctor’s certificate submitted in support of the application for a mistrial was inadequate. Certainly the court was not required, on the showing made, to grant the application for a mistrial. But the court was not able or willing to find that counsel was malingering. We think, therefore, that the court should have made further inquiry into the condition of plaintiffs’ counsel and allowed time for the doctor to appear and testify or render a fuller statement in affidavit form. The trial court’s view of the evidence, however justified, did not warrant a dismissal of the complaint on the merits at that juncture of the case. Judgment and order unanimously reversed, without costs, and a new trial ordered. Concur — Peek, P. J., Breitel, Cox, Frank and Valente, JJ.