Opinion
April, 1907.
Abraham Oberstein, for appellant.
David Kornblueh, for respondent.
Upon December 5, 1906, the day to which the above entitled action had been adjourned, the clerk of the defendant's attorney appeared upon the call of the case and presented an affidavit made by defendant's attorney to the effect that said attorney was then actually engaged in Trial Term, Part 1, Supreme Court, Kings county, in a case (naming it) which on the day before had been reached on the call calendar of that court and that defendant and his witnesses had waited to be assigned to a trial part, and would be so assigned on December fifth, and that the trial would take all day. The clerk also stated that he had been in telephonic communication that morning with said attorney and that he was actually engaged in the trial of said action and asked that the case be adjourned pending such engagement of defendant's attorney. The court refused such request and ordered an inquest which was taken and judgment rendered and entered in favor of the plaintiff for the amount claimed by him. Subsequently a motion was made to open the defendant's default, when the foregoing facts were made to appear. The motion was made upon an order to show cause; and the order appealed from is dated December 19, 1906, and recites that "this motion is granted and the action is set down for the 24th day of December, 1906, upon condition, however, that the defendant pay to the plaintiff or his attorney the sum of $10 costs of this motion, on or before the 21st day of December, 1906, otherwise the said motion is denied." The figure 1 in the order had clearly been written in ink over the typewritten cipher in the figure 20, thus making the time in which to comply therewith the twenty-first. The endorsement upon the moving papers, evidently made by the justice, differs from the order above mentioned by requiring the payment of the ten dollars costs by the defendant on or before "the 20th inst."; and it is claimed by the appellant that the order was served on the twentieth of December, but not in time to enable him to comply with the terms thereof. It will be observed that the order does not vacate the judgment and provides that, unless the ten dollars costs was paid within the time limit, the motion is to be denied. It is quite clear that the court erred in refusing an adjournment upon the grounds stated by the defendant. The affidavit presented to the court by the defendant's attorney showed an actual engagement in the Supreme Court of Brooklyn, both sides in that case in that court having answered "ready" and being present in court with their witnesses. The defendant was therefore entitled to an adjournment as a matter of legal right. Marsh v. Nassau Show Case Co., 26 Misc. 837. The court was likewise in error in imposing terms as a condition for opening the default. Marsh v. Nassau Show Case Co. supra. It is urged by the respondent that the order is not an appealable one. We do not agree with this contention. The Municipal Court Act provides that orders specified in the four sections preceding section 257 may be appealed from as from a judgment, making an exception only in the case of an order "opening a default and vacating a judgment entered thereon." The two requisites of such an order are the opening of the default and the vacating of the judgment. The legislative intention that both essentials must be complied with is made clear by section 258, which provides the only terms that can be imposed as a condition for the opening of a default, and none of those terms permit the judgment to remain as a lien during the pendency of the action.
The order made herein must be modified by opening the default without the payment of costs in the court below and as modified affirmed with costs to the appellant in this court.
GIEGERICH and ERLANGER, JJ., concur.
Order modified and as modified affirmed with costs to appellant in this court.