Opinion
April 11, 1944.
Order denying appellant's application to place this action on the Military Suspense Calendar, and setting the case down for trial on a day certain, reversed on the law and the facts, with ten dollars costs and disbursements, and the motion granted, without costs. The appellant, one of two defendants in this negligence action, is now overseas in the military service of the United States. Absence from a trial in which his liabilities are being adjudged is prima facie prejudicial. ( Boone v. Lightner, 319 U.S. 561, 575.) This prejudice is not overcome by the plaintiff's consent to the reading of the testimony given by the appellant in a prior action in which the liability of the respective defendants in this action as between themselves was litigated. The plaintiff was not a party to that action and the issues here involved are not necessarily the same. Close, P.J., Hagarty, Carswell, Lewis and Aldrich, JJ., concur. [See post, p. 992.]