Cqurf, B. D. Nt!U1 York. November 28, 1888.)
EQUITy-PRACTICE-Tum FOR TAXING TESTIMONY.
When a ,party's time to take )iis testimony has expired without Its being , taken, the court may, on cause shown. grant relief by allowing the testf. . mony to be taken and filed pro ptnc.
In Equity. Application for extension of time to take testimony. H. A. WeBt, for complainant. John J. Allen, for defendant.
LACOMBE, J. The defendant has. ,failed to secure the taking of his proof by reason, apparently, of some misunderstanding between hiscounsel and his solicitor as to who would attend to it. To thus lose the opportunity of his presenting his defense, if he has any ,would be a great hardship. The court has power under the rule to grant relief by allowing the testimony to be taken'and filed nunc pro tunc. Fischer v. Hayes, 6 }lied. Rep.. 76. In view .of the fact that the next term for trial of equitycauses will :not be held till March, the granting of such relief will work no injustice to the' complainant. The defendant may enter lIin or.. der extending his time to take testimony to and including December 31st, such testimony, when taken, to be filed nunc pro tunc as of August 10, 1888. If defendant wishes to cross-examine any of plaintiff's wit.. nesses who were examined on July 9th to July 13th, he may, befor& taking any of his own testimony,: secure their presence by subprena, and upon their appearance proceed with their Complainant may have 20 days after· close of defendant's case to take testimony in rebuttal. Defendant must accept notice of trial for March term, and the case is ordered on the calendar for that term.
Court,E,D. NetD York. November 21,1888.)
In an action between former partners for an accounting. defendant moved that a corporation be made ",party to,the suit on the ground that it had prop' erty belonging to the old partnership. and that complainant was irresponsible. Defendant had an action pending in the state court for similar relief. in which real estate had been impounded by the filing of a lis pendens. Held, that defendant must show a reasonable probability of his obtaining a judgment against complainant for a greater sum than that already secured in the state court. As all the evidence on that point had been regularly taken before the master, but defendant had not since then pressed the case 'to a decision, held, that the motion should be denied.
lReported by Edward G. Benedict, Esq., of the New York bar.
In Equity. , On motion to make the Associated Company a party to this suit. '. . '. . Bill .by Herman Duden· against Michael· F. Maloy for an accounting of the partnership assets of Duden & Co. . Howard Y. Stillman, for complainant. J. M. liyddy, for defendant. LACOMBE, J. The Associated Lace-Makers' Company is not an: indispensableparty to this suit. The accounts of the firm of Duden & Co., of New York, the sole partners in which were the complainant and defendant,.canbe adjusted, and adecree for money judgment against either side entered, without the presence of the corporation. Defendant. however, claims that the Lace-Makers' Asssociation should be brought in because it has become possessed of property of the old partnership, which may be dissipated unless the court impounds it, and which should be the defendant may obtain applied to the payment of whatever against complainant upon the accounting; himself being, as defendant contends, irresponsible. Defendant has an action pending in the supreme court against the corporation for similar relief, in which by the filing of a liapendem he has impounded real estate worth from $10,000 to $15,000. The application now made is not of right, but addressed to the discretion of the court. It is essential to its granting that the defendant should show a reasonable probability of his obtaining a judgment against the complainant for a greater sum than that already secured by his lis pendens in the state.court. That he will be able tain such a decree .is vigorously disputed by complainant. The question is one which should not be decided upon affidavits. It appears that all the evidence upon that point deemed material by either party has been taken regularly before the master; but though the record was completed some time since, defendant has not pressed the case to a decision. and since the argument of this motion has. as the master informs me, asked for and obtained an adjournment. This fact, coupled with his long delay in moVing to make the corporation a party, is sufficient reason for denying the motion.
ROSSMAN "'. HEDDEN, Collector.
(Oircuit Oourt, B. D.]J'ew York. December 12, 1888.)
CuSTOMS DUTIES-CLASSJlI'ICATION-Gr,.AZED TILES-REV.
ST. U. S. § 2499. Plain glazed tiles of different colors. used for hearths, bath-rooms, walls, dadoes, wainscoting, and ornamental purposes, are not" paving tiles, "within the meaning of Schedule B of the tariff act of 1tl83, (Heyl, par. 130;) but arlt properly enumerated as "earthenware. * * * glazed, * * * composed of earthy or. mineral. substances, not especially enumerated or. prOVided for in this act," (Schedule B, Heyl, par. 127,) and dutiable at 55 per centum ad va,lorem. . '" . : , .