Opinion
March, 1907.
Saitta Thiele, for appellant.
Albert S. Oglesby, for respondents.
This is an appeal from an order denying a motion to open the default of the defendant in failing to proceed with the trial of the case after the same had been reached. The court below denied the motion, not upon the merits, but solely, as stated in his order denying the same, upon the ground of want of power. In this the court below was clearly in error. There has been a failure to distinguish between the case of Lavenfeld v. Adler, 99 N.Y.S. 799 and cases like the case at bar, where the defendant is clearly in default and has a right to have it determined whether or not he is entitled to his day in court. In the Lavenfeld case the plaintiff appeared upon the adjourned day and asked for a further adjournment; this was refused, and the complaint dismissed; and, as Mr. Justice Leventritt very properly said, "The judgment of reversal was not the result of the non-appearance of the plaintiff". In that case there was nothing for the trial judge to do, having refused an adjournment, except to dismiss the complaint; and the plaintiff's remedy was either to sue again, or appeal from the judgment upon the ground that such adjournment was one to which he had a legal right. In the case at bar the defendant, it is true, appeared and asked for an adjournment, which was refused, and thereafter an inquest was taken, the judgment thus rendered being one rendered upon the defendant's default. The respondents' attorney alleges in his brief that the defendant's attorney remained in court during the inquest and, after its conclusion, moved for a stay of execution and therefore cannot be considered as having been in default. This does not appear by the record. One of the affiants states that he was informed by his clerk that a "few days' stay had been granted" and the affidavit of the clerk says that the court, after hearing the testimony of the plaintiff and his witnesses, gave a judgment for $468, and "at the same time saying that the execution be stayed for five days to enable us to make a motion"; and this statement is not disputed in the opposing affidavit. The proceedings and testimony taken upon the trial are not made a part of the return, and it nowhere appears in the record that the defendant in any way appeared after the refusal to grant the adjournment asked for but suffered an inquest to be taken. The moving affidavits, together with the affidavit of merits, presented sufficient grounds for opening the defendant's default, and the motion should have been granted.
Order reversed and new trial ordered, upon payment of ten dollars costs in the court below and the defendant stipulating that the judgment stand as security until the final determination of the action.
Present: GILDERSLEEVE, DAVIS and HENDRICK, JJ.
Order reversed and new trial ordered upon payment of ten dollars costs and defendant stipulating that judgment stand as security until final determination of action.