Opinion
May 6, 1976
Appeals from (1) a judgment of the Supreme Court, entered December 17, 1974 in Franklin County, upon a decision of the court at a Trial Term, without a jury, and (2) an order of the Supreme Court at Special Term, entered August 26, 1975 in Franklin County. Following the trial of this action for work, labor, and services, judgment was granted to the plaintiff in the sum of $1,218.89. Thereafter, a motion by the defendant for a severance of the causes of action alleged in the counterclaim and for a new trial thereof was denied by Special Term. On this appeal defendant contends, as he did at Special Term, that the Trial Justice improperly denied his request for an adjournment to permit the appearance of the defendant and a witness at the trial; that the trial court improperly prevented the defendant from offering proof of his counterclaims by way of cross-examination of plaintiff's witnesses; that the trial court indicated its prejudice toward defendant and denied him a fair trial of his counterclaims. We find no merit to these contentions. Under the circumstances here, the Trial Judge's refusal to delay the commencement of the trial, as requested by the defendant's attorney, was a proper exercise of discretion. The record discloses further that defendant's attorney was permitted to question the witness (plaintiff's president) as to certain repair costs as they relate to the counterclaim, and the witness replied that he would not know the amount of such costs. The defendant offered no proof of damages to support the counterclaim, and the trial court made no determination with respect thereto. We find no basis, however, for the claim by the defendant that his failure to establish his counterclaim is attributable to the Trial Judge in denying him an opportunity to prove his damages. Judgment and order affirmed, with costs. Koreman, P.J., Sweeney, Larkin, Herlihy and Reynolds, JJ., concur.