Sudam v. Swart

Per Curiam. The order of the Judge in this case, stayed the proceedings on the reference, with a view to this motion, which is, that the referees stay proceedings until the first day of April next. It is not doubted, that the witness, who is absent, is a material witness, nor but that he will return home by that time. It is objected, that such a rule, as that now asked for, is unprecedented ; and that it ought to be left to the discretion of the referees, in the first instance, and that this Court ought not to interfere, until it is seen, that the referees will not consent to an adjournment of the hearing. The cases of Bird v. Sands, (1 Johns. Cases, 394.) and Combs v. Wyckoff, (1 Caines, 147.) appear to us to be in point, that this Court will stay the proceedings before referees, on a proper foundation being laid for the application. Indeed, it is the common practice of the Court to do so. The referees may, and probably would, allow an adjournment, until a material witness, who was absent, should return. They might not, however. [477] think fit to grant it. The application to this Court is a cautionary measure, in which we think the party has a right to our aid, in order to prevent an unnecessary accumulation of costs, and to prevent his being compelled to go to a hearing, when he is not prepared, from causes over which lie has no control. Rule granted.