Opinion
February 24, 1911.
Edwin L. Kalish [ Arthur Carter Hume with him on the brief], for the appellant.
Paul Armitage [ George E. Darling with him on the brief], for the respondent.
This is an appeal from a judgment in favor of the plaintiff in an action brought to foreclose a mechanic's lien on property situate in Suffolk county. The notice of appeal brings up for review an interlocutory order denying a motion to strike the case from the calendar when the action was reached for trial at a Special Term of this court held in Suffolk county on February 5, 1910. It appears from the record that when the motion to strike the case from the calendar was denied the defendant's counsel formally withdrew from the trial and an inquest was taken in their absence. From the judgment entered on the inquest the defendant now appeals. The judgment so entered was, therefore, a judgment entered on a default, and no appeal therefrom lies to this court.
As to the appeal from the order denying the motion to strike the case from the trial calendar, a similar question arises. This action had been brought on for trial in Suffolk county before Mr. Justice ASPINALL on November 15, 1909. The parties entered into a written stipulation to begin the trial by swearing one witness for the plaintiff and then to continue it before Mr. Justice ASPINALL in Kings county at a time to be fixed by him. This was done, and at the time fixed by the justice for the continuance of the trial there was an adjournment. On the adjourned date there was an unreadiness on the part of the defendant to proceed with the trial. In the absence of defendant's counsel, but on the statement of plaintiff's counsel that the defendant's counsel had consented thereto, an order was made sending the case back for a trial de novo at the next term of the court in Suffolk county. This order was not entered formally in Suffolk county, and consisted simply of a written direction in the minutes of the clerk of the court in Kings county, where Mr. Justice ASPINALL was then sitting. The entry of the order was not essential to give it force. ( Eighmy v. People, 79 N.Y. 546, 557.) The fact that the order was not in the usual and customary form, but consisted entirely of a written entry in the minutes of the clerk, was a sufficient compliance with section 767 of the Code of Civil Procedure. ( Gerity v. Seeger Guernsey Co., 163 N.Y. 119.) It appears that the defendant's counsel became aware of the making of this order, but he made no formal motion to vacate it, contenting himself with writing in protest to the justice who made the order. When the case came on for trial the second time in Suffolk county, the defendant's counsel made a motion to strike the case from the trial calendar on the theory that the order in question was either a nullity or that it had been procured by the false representations of the plaintiff's counsel. This motion was denied and an order entered accordingly. It was not error on the part of the trial court to recognize the prior order as existing. The defendant, if aggrieved thereby, had an ample remedy to secure its vacation or modification by suitable application at Special Term. The common and long-settled practice would require the party aggrieved, under the circumstances of this case, to apply at Special Term, on motion, to set aside the judgment entered on the default and for a new trial. ( Martin v. Hicks, 6 Hun, 74; Matter of Rubenstein, 129 App. Div. 326; Mott v. Mott, 134 id. 569.) On such an application, if the plaintiff shows sufficient merits, he may receive such relief as may be appropriate.
The appeal from the judgment herein and from the interlocutory order of February 5, 1910, should be dismissed, with costs, but without prejudice to the defendant to apply to the Special Term for such relief as it may feel advised, within twenty days.
JENKS, P.J., BURR, WOODWARD and RICH, JJ., concurred.
Appeal from judgment and from interlocutory order of February 5, 1910, dismissed, with costs, but without prejudice to the defendant to apply to the Special Term for such relief as it may feel advised, within twenty days.