Miller v. Hainzl

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: PER CURIAM
• Citation: Miller v. Hainzl, 169 N.Y.S.2d 932, 5 A.D.2d 764 (N.Y. App. Div. 1958)
• Decision Date: 28 January 1958
• Parties: Martin G. MILLER, an infant over the age of 14 years by his guardian ad litem Frank Miller, et al., Plaintiffs-Respondents, v. Frank HAINZL, doing business as Tallwood Lodge, Defendant-Appellant.

Page 932

169 N.Y.S.2d 932

5 A.D.2d 764

Martin G. MILLER, an infant over the age of 14 years by his guardian ad litem Frank Miller, et al Plaintiffs-Respondents, v. Frank HAINZL, doing business as Tallwood Lodge, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

Jan. 28, 1958.

R. A. Dwyer, New York City, for plaintiffs-respondents.

P. Hoffer, New York City, for defendant-appellant.

Before BOTEIN, P. J., and VALENTE, McNALLY, STEVENS and BERGAN, JJ.

PER CURIAM.

This action, which was commenced in 1952, came on for trial in February, 1957 and was marked 'Ready' for three successive days. It was assigned to Part V on February 7, 1957 and then passed until February 8th. On that date, counsel for plaintiff applied for an adjournment to April, 1957 on the ground that plaintiff's father (guardian ad litem) had suffered two heart attacks since December, 1956 and it was essential that plaintiff's mother, who was to be a witness, accompany the father to Florida for his health. The justice presiding in Part V, while refusing to grant the delay, obtained an agreement from counsel to take the mother's deposition before her departure to Florida. Accordingly, the trial was adjourned to February 14th. On the latter date, plaintiff's attorney again requested an adjournment because the mother had departed for Florida. Her deposition had not been taken, it was averred, because the father's physician had advised that the father's condition would be adversely affected by the mother's participation in the lawsuit at that time. Upon counsel's rejection of the court's proffer of an adjournment for two or three more days, defendant's motion to dismiss was granted. Four months later, in June, 1957, plaintiff moved to restore the cause of the calendar. The order granting that motion is...