
    GALLAUDET v. STEINMETZ.
    
      N. Y. Superior Court;
    
    
      General Term, April, 1879.
    Adjournment or Triad.—Affidavits.—Arpead.
    An exception lies to a refusal to postpone a trial on account of the absence of a material witness.
    
    An appellant who has taken exception to the refusal of his motion to postpone a jury trial for absence of a witness, is entitled to have his moving affidavits inserted in the case on appeal.
    Appeal by defendant from an order.
    This action was brought by Peter W. G-allaudet against William G-. Steinmetz.
    The case was on the calendar June 6 and 7, 1878, but was not called until June 10. Charles Leliva, a witness for defendant, was duly subpoenaed, but did not attend on the 10th or 11th, although he had attended on June 6 and 7. On June 11, when this case was called for trial, defendant presented to the court the affidavit of Alfred P. Reeves, showing service of subpoena, and of defendant, showing materiality of the absent witness’s testimony, &c., and moved that the trial be postponed on account of his absence.
    The motion was denied, defendant excepted, and the trial proceeded and resulted in a verdict for plaintiff by direction of the court, and defendant appealed.
    The defendant’s attorney handed the affidavit of the defendant to the stenographer, and requested him to note the motion, decision and exceptions, in his minutes. The affidavit of said ReeVes was filed in the office of the clerk of the court.
    The stenographer failed to furnish to the defendant’s attorney any minutes of said motion, decision or exception. The attorney having forgotten that he had handed the defendant’s affidavit to the stenographer, made diligent search among his papers for it, but not finding it, made a copy from recollection and embodied it with the motion, decision and exceptions in the case on appeal which he served upon the plaintiff’s attorney. On the settlement of the case in October, 1878, the affidavits, motion, decision and exceptions were stricken out.
    A few days thereafter, the defendant’s attorney obtained the original affidavit from the stenographer, and, upon an examination of his minutes of the trial, found that they contained an account of the motion to postpone, and obtained a copy thereof.
    Thereupon he made a motion for a re-settlement of the case, allowing said affidavits and minutes of motion and exceptions to be embodied in case.
    From the order denying this motion, the defendant appealed.
    
      E. E. Dana, for defendant, appellant.
    The decision of a motion to put off the trial of a cause is not conclusive, but may be reviewed either by motion at special term, or by appeal from the judgment (Gregg v. Howe, 37 N. Y. Super. Ct. [J. & S.] 420 ; Howard v. Freeman, 7 Robt. 2 ; 3 Abb. Pr. N. S. 292; Martin v. Hicks, 6 Hun, 74; Ogden v. Payne, 5 Cow. 15; Hooker v. Rogers, 6 Id. 577; People v. Vermilyea, 7 Id. 369 ; Miller v. Porter, 17 How. Pr. 526 ; Starin v. People, 45 N. Y. 333). The general term has power to review the order appealed from, as it was not a question of discretion, and does affect a substantial right of defendant (Marckwald v. Oceanic Steam Navigation Co., 8 Hun, 547; People v. Baker, 35 Barb. 106 ; Laws of 1873, p. 153, c. 70; Id. p. 239, c. 239; Ryan v. Green, 58 N. Y. 295 ; Code of Civ. Pro. § 263 ; Tweed v. Davis, 1 Hun, 252).
    
      W. W. Niles {Niles & Bagley, attorneys), for plaintiff, respondent.
    
      
       The authorities are cited, and the practice fully stated in Brooklyn Oil Works v. Brown, 7 Abb. Pr. N. S. 382.
    
   By the Court.—Van Vorst, J.

The practice in cases like that involved in this appeal, is settled in this court. The decision made by the learned judge upon the motion of the defendant’s counsel, before the impaneling of the jury, upon affidavits for the postponement of the trial, on the ground of the absence of a material witness, and to which decision an exception was taken, is the subject of review. The defendant may, upon a case containing his exceptions to the decision, move for a new trial at special term, or present the exceptions for review by appeal from the judgment. In either case the affidavits used on the motion properly form a part of the case (Gregg v. Howe, 37 Super. Ct. 420). The sufficiency of the affidavits cannot be determined on this appeal.

The defendant’s case should be re-settled by incorporating therein the affidavits used on the motion to postpone, and his exceptions. The order appealed from is reversed, with $10 costs, and disbursements.  