Opinion
January, 1919.
Max Lippman, for appellants.
Merton E. Lewis, Attorney-General (Robert P. Beyer, deputy attorney-general, of counsel), for respondent.
The action is to recover a penalty under the provisions of the Agricultural Law of this state for selling impure malted milk. The record shows that there were more or less dilatory practices pursued by defendant to delay the trial of the action with the result that the court finally set May 14, 1918, peremptorily as against defendants as the date for trial. On that day, the case being regularly called for trial, defendants presented an affidavit of engagement of counsel in the trial of a case in the City Court. The trial justice then stated that if the case was to be further adjourned it would be in the interest of a speedy trial and that he would grant the application for an adjournment provided defendants would consent to waive the jury trial previously granted them, and have the case set for disposition on a day certain. Defendants refusing to consent to the terms mentioned, the court directed an inquest which was thereupon taken. Application was subsequently made by defendants to open this default, and from the order denying same this appeal is taken. We conclude that the learned court below exceeded its authority in the matter. The case having been set down for trial peremptorily for the day mentioned meant nothing more than that the defendant would be obligated to go to trial at that time provided no legal excuse to the contrary was presented. The affidavit of engagement of counsel in the City Court is a legal excuse recognized by the General Rules of Practice, and the learned court thereupon should have granted the continuance applied for.
Order reversed, with ten dollars costs to appellant, judgment vacated, and motion granted. Date of trial to be set in Municipal Court.
GUY and BIJUR, JJ., concur.
Order reversed, with ten dollars costs to appellant.