
    (83 Hun, 509.)
    MICHELSEN v. SPIES.
    (Supreme Court, General Term, First Department.
    January 18, 1895.)
    Postponement op Trial—Absent Witness.
    It is error to refuse a motion to postpone a case where the moving affidavit shows without contradiction that the moving party was about to undergo a serious surgical operation, which would prevent her presence at the trial, and that she was the sole witness as to a material issue.
    Appeal from special term, New York county.
    Action by Heinrich Michelsen against Amelia L. Spies on a promissory note. From an order denying a motion to open a default, to set aside an inquest, and to grant a new trial, defendant appeals. Affirmed on condition.
    Argued before VAN BRUNT, P. J., and O’BRIEN and FOLLETT, JJ.
    James H. Warner, for appellant.
    Hamilton R. Squier, for respondent.
   O’BRIEN, J.

The action is brought upon a demand promissory note for $12,000 made by defendant’s testator to one Ferrand, and transferred to plaintiff after maturity. The defendant admits the making of the note, but claims that she advanced and paid to Fer-rand, for the estate of the testator, the sum of $600, which payment was made, at the request of said Ferrand, as an advance on any amount of pro rata dividend that might become due and payable to said Ferrand upon the note on a final distribution of the property in the hands of the defendant as executrix under the will of the testator. Upon the cause being reached for trial, the defendant presented a physician’s affidavit to the effect that a serious operation would prevent her presence at the trial, and testifying, which was supplemented by that of the defendant’s counsel, that the defendant was the sole witness to the transaction or agreement between her and Ferrand regarding the payment of the $600, and was a material witness to prove such affirmative defense of payment. ¡None of the statements contained in these affidavits was controverted by plaintiff, nor does it appear that he would have been in any way injured by the delay. Upon these affidavits, a motion for an adjournment was made until defendant could testify, which motion was denied. Subsequently," a motion was made before the trial judge to have the default opened, and a new trial granted, which was likewise denied, upon the ground that plaintiff offered to admit the payment of $600, if pleaded.

The affidavits furnished a legal excuse, entitling the defendant to an adjournment, if her testimony was material and necessary to an issue in the case. The issue raised was whether the $600 was a payment on the note, or a pro rata dividend on the debt. That these „ are not the same thing is evident from ,a consideration of the effect of such payment, if we assume that the estate of the testator was insolvent, and unable to pay the debt in full. In one event, it would be but a payment on the indebtedness, leaving the balance upon which the creditor could obtain a dividend out of the estate; while, on the other hand, if the entire debt were presented and allowed, and a dividend less than the whole amount were to be applied upon plaintiff’s claim, then the defendant would be entitled to a credit upon such dividend for the $600 already paid. This issue being raised, and it being a material issue, the defendant was entitled to present her side upon the trial. ¡Not, however, being present, but offering a legal excuse, the cause should have been adjourned. If the plaintiff is entitled to any benefit obtained contrary to the legal right which the defendant had to an adjournment, it should only be upon the assumption that she could maintain her defense that the $600 was not a payment on the note, but was a pro rata dividend on the debt. The order should be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs, unless the plaintiff stipulates to enter a judgment for the amount of the note, with interest thereon, without costs, and thereupon to indorse, as a payment thereon, a sum equal to $600, with interest from October 18, 1893, in which case the order is affirmed, without costs to either party. All concur.  