
    SUPREME COURT—APP. DIV.—FIRST DEPT.,
    May 19, 1916.
    THE PEOPLE v. ZAHARIA KERBER.
    (172 App. Div. 755.)
    Trial—Right of defendant to adjournment because of engagement of COUNSEL IN ANOTHER CASE.
    A defendant in a criminal case is entitled to a reasonable adjournment to enable him to be defended by counsel employed for that purpose and familiar with the case.
    Hence, when on the day set for the trial of a criminal case, counsel appearing for the defendant asks for an adjournment on the ground that the attorney who was to try the case is actually engaged in the trial of another ease, and presents an affidavit showing such engagement, and later in the day when the case is called for trial renews the motion and flies an affidavit showing that the attorney for the defendant will be engaged for the balance of the day, and such motion is denied, a conviction should be reversed and a new trial granted, although previous adjournments had been granted.
    Appeal by the defendant, Zaharia Kerber, from a judgment of the Court of Special Sessions of the City of New York, Part VI, entered in the office of said court' on the 10th day of March, 1916, convicting him of violating the provisions of section 439 of the Penal Law and sentencing him to imprisonment for sixty days and to pay a fine of $250 or to serve sixty days additional time in the workhouse.
    
      Louis Steckler, for the appellant.
    
      John G. Dyer, for the respondent.
   Laughlin, J.:

The information charged that the defendant, as duly authorized agent and employee of the Peruvian Panama Hat Company, employed one Gross to work as a hatter for it and as a condition of employing him and retaining him in its emplojr unlawfully requested, received and accepted from him on the 17th day of October, 1914, the sum of four dollars and sixty cents; and in a second count it was charged that the defendant unlawfully received said sum as a commission and bonus.

It appears by an indorsement on the information that one Alexander Karlin, whose office address was given, was counsel for the defendant. The case was set for trial for March 10, 1916. When the calendar was called on that day, one Lapides appeared as counsel for the defendant and asked for an adjournment on the ground that Mr. Karlin, who was to try the case for the defendant, was engaged in Part IV of the Supreme Court before Mr. Justice Ford and evidently presented an affidavit showing such engagement. The application was denied and the case was called for trial at about four o’clock in the afternoon at which time Mr. Lapides renewed his motion and filed an affidavit made on that day by Mr. Karlin showing that he was the attorney for the defendant and was actually engaged in the trial of a case, the title of which was given, before Mr. Justice Ford in Trial Term, Part IV, and would be so engaged for the balance of the day and prayed for an adjournment of the trial of the defendant. The record shows that the presiding justice thereupon stated that the same application had been made twice before and that it was made at the opening of the court on an affidavit “ which in substance was very much like the one handed up this afternoon; ” and that the application had been denied and the case placed at the foot of the calendar and. as the other cases had been finished, the trial of the defendant must then proceed. An exception was taken and Mr. Lapides sat with the defendant through the trial, but took no part in the trial other than to take certain exceptions. The evidence adduced on the part of the People tended to show the commission of the crime by the defendant. The defendant refused to cross-examine the witness called by the People or to take the stand, or to call witnesses in his own behalf, although he was invited so to do, and informed by the presiding justice that it was his privilege. He stated to the court, in effect, that his counsel, Mr. Karlin, had advised him that the trial would not proceed, and not to testify in the absence of his counsel.

We are of opinion that the defendant was entitled to an adjournment of the trial. It is to be inferred from the affidavit that his attorney’s engagement before Mr. Justice Ford would be concluded that day; and although the affidavit does not show that Mr. Karlin informed Mr. Justice Ford of this engagement or endeavored to postpone the trial of the other action, it was not, we think, unreasonable in the circumstances, when the case was not reached for trial until so late in the afternoon, to request that it be adjourned until the next day. It is of no importance that other counsel was present and requested the adjournment, for it does not appear that he was prepared to conduct the defense. A defendant in a criminal case is entitled to a reasonable adjournment to enable him to be defended by counsel employed for that purpose and familiar with the case, or to procure the presence of a material witness. (People v. Calabur, 91 App. Div. 529; People v. Brackerton, 89 Misc. Rep. 269; People v. Criscuoli, 164 App. Div. 119.)

In a criminal case, even if no exception were taken, this court is authorized and it is its duty to grant a new trial where the ends of justice require it. (Code Crim. Proc. § 527.) -Ordinarily the granting of an adjournment is addressed to the sound discretion of the trial court (People v. Jackson, 111 N. Y. 362; Webster v. People, 92 id. 422; People v. Curtiss, 118 App. Div. 259), and it is important that there shall be no unreasonable delay in bringing those charged ivith crime to trial. We do not wish to be understood as opening a door to unreasonable adjournments; but in the case at bar it cannot be said that the defendant has had a fair trial which involves the constitutional right to be represented by counsel. (People v. Calabur, 91 App. Div. 529; People v. Criscuoli, 164 id. 119.) It is claimed in behalf of the respondent that figures and letters indorsed on the information show that the defendant was arraigned on the 5th day of January, 1916, and the case was set for trial on January thirty-first and on that day adjourned at his request until February eighteenth and then postponed by the court until March tenth and ordered preferred. Those facts do not clearly appear, and if they did they would not justify the action of the court in thus proceeding with the trial on the tenth of March when defendant’s attorney was engaged in the trial of an action in a court of record. The defendant should then have been afforded an opportunity by adjournment to obtain the presence of the attorney he had employed or to obtain another counsel.

It follows that the conviction should be reversed and a new trial granted.

Clarke, P. J., Scott, Smith and Davis, JJ., concurred.

Judgment reversed and new trial ordered. Order to be settled on notice.  