Rathbun v. Ingersoll
The Superior Court of New York City
Appeal from an order for a commission to examine witnesses, with a stay of proceedings. The action was commenced in April, 1866, and was pending before a referee, with numerous meetings and much testimony taken, until July 25, 1871, when the evidence was declared by the referee closed on each side, and the trial adjourned to September 7, for summing up.
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Appeal from an order for a commission to examine witnesses, with a stay of proceedings. The action was commenced in April, 1866, and was pending before a referee, with numerous meetings and much testimony taken, until July 25, 1871, when the evidence was declared by the referee closed on each side, and the trial adjourned to September 7, for summing up. On July 18, the motion by the defendant for a commission was noticed, and adjourned from time to time to September 7, when it was dismissed on failure of the defendant to appear. The default was subsequently opened, and the motion for a…
1Opinion of the Court
By the Court.—Monell, J.
The order, although in a sense discretionary with the judge who granted it, is reviewable by the general term. It affected a substantial right, within subdivision 3 of section 349 of the Code, and is, therefore, under the authority of In Re Duff, 41 How. Pr. 350, appealable.
The power of a referee in respect to the ordinary incidents of a trial are the same as the court. He can grant or refuse amendments of pleadings, or conform the pleadings to the facts. He cam compel the attendance of witnesses, and is authorized to grant adjournments from time to time, to suit the…
2Cases cited1 opinion
- In re DuffNew York Court of Appeals · 1870