Opinion
March, 1899.
McKelvey Mattocks, for appellant.
Wilder Anderson, for respondent.
This case having been called upon the day calendar of January 19, 1899, for trial, a representative of the defendant's attorneys applied for an adjournment, and presented and filed an affidavit, verified on that day, wherein the affiant deposed that he was one of the attorneys and had charge of the above-entitled action; that he was actually engaged in the trial of a case named, in the Supreme Court, New York county, Trial Term, part seven, and would be unable to proceed with the trial of this case on that date. As there was presented to him the very affidavit contemplated in rule 5, of the rules to regulate calendar practice in this department, including the practice in the Municipal Court (§ 1377, Greater New York charter), the justice erred in not granting the application, and in permitting the plaintiff to take an inquest and recover judgment. This error was not cured by opening the default upon a motion made and heard upon conflicting affidavits, with the imposition of terms upon the defendant.
The judgment appealed from should be reversed and the order vacated, with costs to the appellant.
FREEDMAN, P.J., and LEVENTRITT, J., concur.
Judgment reversed and order vacated, with costs.