¶1— The claim made upon the argument of this appeal, that it was error for the judge to refuse to postpone the trial, even if his ruling could be reviewed in this court, is not well founded. The motion to postpone was addressed to the sound discretion of the court below, and although the discretion of the judge at the trial term might be reviewed by the general term of that court, this court cannot review the discretion of the general term of the marine court. Even if such discretion could be reviewed, we see no reason *350for reversing their action. The trial of the canse had been postponed on account of the absence of this witness, and at the time of the application to postpone under consideration, the affidavits upon which it was founded disclosed no time at which it was probable that the attendance of the absent witness could be secured. This is an essential element in such application, as the motion can only be granted where it appears that the attendance of the witness can be procured within a reasonable time. As to the exceptions to the admission of evidence, it might be sufficient to state that the learned judge charged every proposition submitted by the defendant as to the law of the road, after the latter had been notified by the court that that question would be treated as matter of law.
¶2The evidence of custom was entirely irrelevant to the facts of this case. The plaintiff’s testimony tended to prove a most malicious trespass, and the defendant’s evidence, if true, showed that he had nothing whatever to do with the happening of the accident. There was no room for any question of negligence. The defendant either intentionally drove into the plaintiff, or he did not. If he did not, then the plaintiff, under the evidence, could not recover. It is true that the question of negligence was submitted to the jury and the charge was therefore more favorable to the defendant than he was entitled. The judgment appealed from should be affirmed, with costs.
¶3J. F. Daly and Vast Hoeseit, JJ., concurred.