The New York Supplement (Volume 162) (Paperback)

Purchase of this book includes free trial access to www.million-books.com where you can read more than a million books for free. This is an OCR edition with typos. Excerpt from book: (173 App. Div. 995) THORN v. EASTERN MAUSOLEUM CO. et al. (Supreme Court, Appellate Division, Fourth Department. May, 1916.) 1. Dismissal And Nonsuit 3=60(3)?Grounds?Want Of Prosecution. Where plaintiff failed to move for a commission to take the testimony of nonresident witnesses until the cnse was on the calendar ready for trial, and on denial of the motion plaintiff refused to proceed with the trial, notwithstanding the suggestion of the trial court that, in the eveut of its appearing that the testimony of the witnesses and documents and contracts referred to were in fact material and necessary to the plaintiff on the trial, permission would be granted to take the testimony of the witnesses by open commission, and an adjournment would be taken for that purpose, an order of dismissal of the action was not error. [Ed. Note.?For other cases, see Dismissal and Nonsuit, Cent. Dig. 142; Dec. Dig. S=(0(3).] 2. Appeal And Error 3=7JM)(3)?Dismissal?Grounds. Where an order denying postponement of trial and dismissing the complaint is affirmed, an appeal from an order denying plaintiff's application for a commission to take testimony will be dismissed. LEd. Note.?For other cases, see Appeal and Error, Cent, Dig. 47, 43S3, 4384; Dec. Dig. =700(3).] Appeal from Special Term, Erie County. Action by Alfred W. Thorn, suing in behalf of himself and all other stockholders of the Eastern Mausoleum Company similarly situated, against the Eastern Mausoleum Company and others. From an order denying a motion by plaintiff for a commission to take testimony of nonresident witnesses, and from an order denying a motion to put the case over the term and dismissing the complaint, plaintiff appeals. Order refusing to postpone the trial affirmed, and appeal from order den...