Opinion
May, 1909.
The inquest was taken in violation of rule VII of the Trial Term rules of the first district, an affidavit having been presented to the court and filed, showing that the counsel who was to conduct the defense was obliged to go to Albany to argue a cause on the day calendar of the Court of Appeals on that day. Litigants and their attorneys have a right to rely upon the observance of a rule prescribing that certain other court engagements of the counsel who is to try a cause shall entitle his client to have the cause passed for the day. The violation of the rule would in any case entitle the party prejudiced thereby to an order vacating the inquest, but especially in an action for a divorce, in which issues have been settled for trial by a jury, and on which a verdict has been rendered against the defendant by default, for in this class of cases the public are interested on account of the possible effect upon society, and the court should be most liberal in affording an opportunity to have the adjudication upon the merits and according to the facts. There had been repeated applications for postponement and delay, which doubtless tried the patience of the trial court; but, regardless of the merits of the other applications and of the indulgence theretofore shown, the defendant had a strict legal right to have the cause passed for the day on which the inquest was taken, on account of the engagement of her counsel before the Court of Appeals. It follows, therefore, that the order should be reversed, with ten dollars costs and disbursements, and motion granted with ten dollars costs. Ingraham, Clarke, Houghton and Scott, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.