Opinion
January 25, 1907.
Martin S. Lynch, for the appellant.
Abraham B. Schleimer, for the respondent.
This cause was on October 1st, 1906, ordered on the day calendar for October 15th, on the defendant's motion, a former judgment therein for the plaintiff having been reversed. On October 13th the clerk of the plaintiff's attorney brought an affidavit to the attorney for the defendant, and asked him to present it to the court on the call of the day calendar on October 15th and try to get an adjournment for a few days. This the attorney for the defendant consented to do. The affidavit was by the sister of the plaintiff's attorney. It stated that the said attorney was taken suddenly ill on October 12th "with an attack of inflammation of the sinews;" that he was under the care of a doctor named, "that his condition is such as to require a rest from business for a few days" and that he "is very ill to-day, and is in bed, unable to leave his house."
The defendant's attorney presented the affidavit to the court on the morning call, as the rules require, the presentation of excuses orally being prohibited by such rules. The learned judge presiding ruled that the affidavit was insufficient and marked the cause ready, but on the request of the attorney for the defendant held it until next day, stating that if it were not tried then it would be put at the foot of the general calendar. The said attorney forthwith communicated these facts to the office of the plaintiff's attorney, and informed the person in charge that he would be ready for trial next day, and that some one must be present to take charge of the plaintiff's side with a sufficient affidavit if an adjournment was to be had. The next morning no one appeared for the plaintiff. The case was held until noon, and then dismissed by the court.
This motion to open the default was made on the said affidavit presented for a postponement, and also on the affidavit of the plaintiff's attorney. This latter reveals for the first time what "sinews" of the said attorney were inflamed; what his illness was; viz., "inflammation of the sinews of my right hand, * * * which illness has incapacitated me from work."
No trial judge could be expected to postpone a cause on such an affidavit as was presented to him. He has to protect the other side as well as the court from imposition. The doctor and the attorney refrained from making an affidavit. But in addition to this the plaintiff's attorney failed to send any one to answer the case next day; it was abandoned. There was no default through inadvertence, mistake or accident, but a willful abandonment of the case. Nevertheless the learned justice at Special Term opened the case and reinstated it for trial, and without terms. This practice should not be continued. The side that is diligent, respectful of the court and the administration of justice, and observant of the rules, should not be made the victim of those who are not ( Loehr v. Brooklyn Ferry Co., 115 App. Div. 666).
Moreover, the affidavit of the plaintiff's attorney states that when he was served with the motion papers to put the cause on the day calendar (viz., about October 1st) he notified the plaintiff by several letters and a telegram to call and see him, but he could not be found, and has not been found, having moved to some place unknown. "I have tried my best efforts to find the plaintiff, but said plaintiff could not be found," are the final words of such affidavit on this head.
The order should be reversed and the motion denied.
HIRSCHBERG, P.J., JENKS, HOOKER and RICH, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with costs.