Schwarzschild & Sulzberger Co. v. New York City Ry. Co.

In our opinion, the defendant was prejudiced by the court’s refusal to grant an adjournment on account of the absence of one of defendant’s witnesses. The case was called for trial after 6 o’clock in the afternoon, and it appears that the witness, after being in attendance all day, had left. Counsel was excused from making affidavit to the materiality of the testimony to be given by reason of the court’s distinct ruling that an adjournment would be refused because the trial had commenced upon the answer “Ready” on the part of both *375sides; and in view of the circumstances disclosed, taken with the unusual hour for calling the case for trial, we conclude that this court should grant a new trial in discretion.

Judgment reversed, and a new trial ordered, with costs to appellant to abide the event.