
    Magdalena Spangehl, Respondent, v. Louis W. Spangehl, Appellant.
    
      Insufficient proof to require a postponement of a trial because of sick witnesses — limitation on the number of witnesses to be called, imposed as a condition of an adjournment.
    
    Where, upon a case being moved for trial, the defendant’s counsel asks for a postponement upon the ground that two witnesses were sick, but does not name such witnesses, or make any claim that they were material to his defense, and presents no proof of either fact verified by his oath or by that of the defendant, the motion is properly denied.
    Where a trial continues until five o’clock in the afternoon, when the defendant’s counsel moves to postpone the trial until the next morning, stating that he had one witness coming from Boston, and that he wished to reserve calling the defendant, who was present and who was the principal witness, until the next morning, and upon being asked by the court who the other witnesses were, names ten persons, one of whom was the defendant, one of whom he stated was sick, and one of whom had not been subpmnaed, and the court grants the postponement upon the defendant’s stipulation to call but five witnesses the next day,' and on the next day enforces the stipulation, when the defendant calls his seventh witness, and the defendant acquiesces in the justice of the ruling, and takes no exception thereto, he cannot contend, upon appeal, that he was deprived of a legal right by the arbitrary action of the court.
    Appeal by the defendant, Louis W. Spangehl, from a judgment of the Supreme Court .in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 28th day of February, 1898, upon the decision of the court rendered after a trial at the Kings County Special Term awarding the plaintiff a separation from the defendant, her husband, and awarding the plaintiff the custody of a child of the marriage, together with alimony, costs and an extra allowance.
    
      Elmer S. White, for the appellant.
    
      Albert J. Wise, for the respondent.
   Per Curiam :

The complaint stated a good cause of action against the' defendant and entitled the plaintiff to the judgment which she has recovered. If the defendant desired more particularity of statement, he should have moved to make the same more definite. In fact the defendant was served with a hill of particulars which supplied all of the defects which are claimed to exist in the complaint and wrhieh is to be deemed a part thereof. (Dwight v. Germania Life Ins. Co., 84 N. Y. 506.) The evidence was somewhat conflicting, but, if the witnesses for the plaintiff are to be believed, their testimony warranted the judgment which has been rendered.

The case was one which it was particularly the province of the court below to determine. He had the witnesses before him, observed their manner and the candor exhibited in delivering their testimony, and the view which the court took finds' abundant support in the evidence. It is claimed that the defendant was deprived of his constitutional right to call witnesses and secure delivery of their testimony upon the trial. Fothing which occurred upon the trial supports this claim. Counsel for the defendant, upon the trial .being moved, asked for a postponement of the same upon the ground that two AAdtnesses Avere sick. He did not name such witnesses or make any claim that they were material to his defense, and he presented no legal proof of either fact upon which the court could act. In fact no proof, verified either by the oath of the defendant or of his counsel, Avas presented to the court. The claim rested in the oral statement of counsel. It is clear, therefore, that the court cotild not do otherwise than deny the motion of the defendant and properly protect the right of the plaintiff.

After the plaintiff had rested, the defendant proceeded to give proof in defense, and the trial continued until five o’clock in the afternoon. The defendant was then present and had not been sworn, although his testimony constitutes the large hulk of that given upon the defense. Counsel for the defendant at the above-named hour applied to postpone the trial until the next morning, stating that he had one Avitness coming from Boston, and as to the defendant he wished to reserve calling him until the morning. The court thereupon asked who the other Avitnesses were, and counsel named ten persons, one of Avhom was the defendant, one who he stated was sick, and one Avho had not been subpoenaed. The court thereupon stated that he could not postpone the trial, but would liipit the defendant to five witnesses in the morning. Counsel then stated that he would call five witnesses in the morning and thereupon the trial Avas postponed. There is no difficulty in spelling out from this transaction what the ruling of the court was. The application of the counsel was to the favor of the court in allowing a postponement of the trial. Such a course Avas not produced by necessity, as the defendant was present, expecting to be sworn, and was in fact sworn the next day. The court refused to postpone, but gave the defendant an option either to then proceed with the trial or to stipulate, if a postponement were had, to a limitation of five witnesses the next day. The defendant, upon a full understanding of the situation, elected to take the postponement, and call but five more witnesses in his defense, and accordingly the trial was postponed. In fact he was permitted to and did call and fully examine six witnesses on the next day, and it was only when he had called the seventh witness that the court enforced the stipulation. It is, therefore, plain that the court did not deprive the defendant of any legal right to which he was entitled, or enforce any rule except such as he had given his consent should be enforced. Under such circumstances, it does not lie in the month of the defendant to make complaint. Nor did he make such complaint upon the trial. Recognizing the justness of the ruling and of his own obligation which had been voluntarily assumed, he acquiesced therein, made no complaint, and took no exception thereto. The charge, therefore, that, he was deprived of a legal right by the arbitrary action of the court, now comes with ill-grace from the mouth of the defendant. We have little doubt also that the court was constrained in its action by the consideration that the evidence proposed to be given could have-but slight bearing upon the merits of the issues involved. The-merits of the case seem, from the evidence, to have been fully tried out, and the character of the case indicates that controlling evidence could be possessed by but few people, and they seem all to have been called.

We find no ground upon which the judgment should be disturbed t, it should, therefore, be affirmed.

All concurred.

Judgment affirmed, with costs.  