Opinion
April 14, 1952.
In an action to recover damages for personal injuries and medical payments, defendant Schulz appeals from an order denying his application to place the action on the Military Suspense Calendar, pursuant to Special Rule of this court. In support of the application it was alleged that a material and necessary witness on behalf of appellant was in the military service of the United States and was unable to be present at the trial by reason of absence from this country, and that his military service and absence from the country had been unknown to appellant until shortly before the making of said application. The plaintiffs did not deny that the testimony of such witness was material and necessary to appellant's case, nor did they deny the other facts alleged by appellant. The application was denied on the ground that appellant had failed to obtain a deposition from the witness in question. Order reversed, with $10 costs and disbursements, and application granted, without costs. In our opinion the denial of the application under the circumstances, was an improvident exercise of discretion. (Cf. Gately v. City of New York, 279 App. Div. 807.) Nolan, P.J., Carswell, Johnston, Wenzel and MacCrate, JJ., concur.