M. Schottenfeld & Sons, Inc. v. Kasabali

Under all the circumstances here, the refusal to grant plaintiff’s application to reopen the case for the purpose of taking testimony of a witness was prejudicial error. The trial court had been notified of the departure of this witness from his place of business and of his expected arrival, and when he appeared during summation of counsel, he should have been permitted to testify. (Sirico v. Four Wheels, 51 N. Y. S. 2d 425; Oka v. United States Fidelity & Guar. Co., 213 App. Div. 746.)

The judgment and order should be reversed, with $30 costs to appellant to abide the event, and motion for a new trial granted.

Edeb, Heoht and Tilzer, JJ., concur.

Judgment and order reversed, etc.