Alfred W. Thorn, Suing in Behalf of Himself and All Other Stockholders of the Eastern Mausoleum Company Similarly Situated, Appellant, v. Eastern Mausoleum Company and Others, Respondents

Alfred W. Thorn, Suing in Behalf of Himself and All Other Stockholders of the Eastern Mausoleum Company Similarly Situated, Appellant, v. Eastern Mausoleum Company and Others, Respondents. Practice — dismissal — commission. Appeal from an order of the Supreme Court, made at the Erie Special Term as resettled and entered in the Erie county clerk’s office on the 23d day of November, 1915, denying a motion made by the plaintiff for a commission to take the testimony of non-resident witnesses in this action, and also from an order as resettled and entered on the 23d day of November, 1915, denying a motion to put the case over the term and dismissing the complaint. [MAJORITY — Per Curiam:] Per Curiam: This order of dismissal does not preclude the plaintiff from bringing another suit for the same cause of action. It appears that the plaintiff refused to proceed with the trial of the action, notwithstanding the suggestion of the trial court that in the event of its appearing upon the trial that the testimony of the Chicago witnesses and the documents and contracts alleged by plaintiff to be material, were in fact material and necessary to the plaintiff upon the trial, permission would be granted plaintiff to take the testimony of such witnesses bj open commission and that an adjournment of the court would be taken for that purpose. We are of the opinion, in view of the suggestions so made and the laches of the plaintiff in moving for a commission until after the case was upon the ready calendar for trial, that the court was justified in refusing to further postpone the trial and in refusing to grant an order for an open commission before entering upon the trial. In view of the disposition of the appeal from the order denying a postponement of the trial and dismissing the complaint, the appeal from the order denying plaintiff’s application for a commission is dismissed. All concurred. Order refusing to postpone trial affirmed, with ten dollars costs and disbursements. Appeal from order denying application for commission dismissed, without costs.