Opinion
October, 1907.
Present — Patterson, P.J., Ingraham, Laughlin, Clarke and Houghton, JJ.
It satisfactorily appears that at the time this inquest was taken the defendant was a sick man, and there was presented to the court upon the application for an adjournment the affidavit of a reputable physician, in which it was stated "that the defendant has been confined to his bed since December 14, 1906. Although Mr. Sheridan is improving in health, he still has a daily rise of temperature to 102°, and is at times very weak. Until these conditions are better, I must forbid him from going to court, as such duty would be at the risk of his life." It seems to us that while there had been some previous adjournments, they had all been caused by the defendant's serious illness, and that under the circumstances presented the further adjournment asked for ought to have been granted. The order appealed from, therefore, should be reversed, without costs in this court to either party, and the motion to open the inquest and let the defendant in to defend granted upon the payment of costs as taxed, and ten dollars motion costs, the judgment to stand as security.
Order reversed, without costs, and motion granted on terms stated in opinion. Settle order on notice.