Opinion
February, 1909.
Russell H. Robbins, for appellant.
Nathan Ottinger, for respondents.
An order was made herein, at a Trial Term of the City Court, on November 30, 1908, which order denied the defendant's application for a postponement of the trial of the action. This order was filed on December 7, 1908, and the defendant appealed therefrom, and this is a motion made to dismiss such appeal. The order, aforesaid, in addition to denying the defendant's motion to postpone the trial, ordered that an inquest be taken, which was done, and a judgment entered thereon on November 19, 1908. On November 24, 1908, the defendant obtained an order to show cause why the inquest, so taken, and the judgment entered should not be vacated and her default opened, which order was returnable at a Special Term of the City Court. This motion appears to have been founded upon affidavits made by the same persons, and setting forth the same facts as were used on behalf of the defendant upon the application made to put off the trial. The motion to open the default was denied and an order to that effect entered, on December 4, 1908. No appeal has been taken from this order, and the time in which to do so has expired. This last named order recited no grounds for the denial of the motion, and we are asked to dismiss the appeal from the first mentioned order, upon the ground that the motion to open the default, having been made upon the same facts as the motion to postpone the trial, and having been, it is urged, denied upon the merits, the decision upon the appeal from the order denying the motion to postpone the trial would be simply determining a question already decided and which is res adjudicata as to the defendant. To support this claim, we are cited the case of Matter of Rubenstein, 129 A.D. 326, in which the practice of appealing from an order, made at Special Term, which denies a motion to postpone the trial, is discussed, and it is intimated that it is the better practice to allow an inquest to be taken, when a motion to postpone a trial is denied, and then to move to open the default, on which motion the whole matter may be disposed of by one motion, the court on such a motion having greater authority and discretion in fixing the terms. The situation of the defendant, in this case, as shown by the foregoing facts, is an illustration of the error of the practice taken herein and the wisdom of adopting the rule as laid down in the Rubenstein case. If the order appealed from is reversed, the decision on the appeal can affect nothing but the order appealed from and the defendant will still be confronted by the judgment, thus necessitating further proceedings on his part before the end sought for is reached; whereas an appeal from the default order would have, if successful, promptly and cheaply accomplished the relief asked for by the defendant. It is clear, therefore, that, upon the denial of an application for the postponement of the trial of an action, the better practice for an aggrieved party would be, either to proceed with the trial and appeal from a judgment, if one is obtained against him, and bring up for review the order denying his motion for a postponement, or to suffer a default and then to move to open such default. Notwithstanding the defendant has not followed this practice, under the peculiar circumstances shown herein, we do not think that the appeal should be dismissed. Although no grounds for denying defendant's motion to open her default are recited in the order, it is clear that it was denied by the City Court justice for want of power, and he so states in his opinion. While the opinion is no part of the record, it may be examined to ascertain what principle governed the court in arriving at its decision. Kenyon v. Kenyon, 88 Hun, 211. He based his decision upon the case of Worth v. Moore Blind Stitching Co., 125 A.D. 211, a decision of the Second Department, which, in the absence of later or other decisions, the justice very properly followed. Subsequently to the making of such decision, the case of Rubenstein above cited was handed down in the First Department. Prior to this later decision, the defendant's attorney, relying upon the Worth case, took no appeal from the default order but rested upon the appeal taken from the order denying the motion to postpone the case; and the opposing affidavits state that this was the position taken by the respondents' attorney upon the argument of that motion. If, therefore, the appeal is dismissed, the defendant will be remediless by reason of having followed a practice then prevailing and having the sanction of a superior court. The decisions above referred to are not conflicting. The decision in the Worth case is based upon a rule of the Second Department. The Rubenstein case does not declare that an appeal cannot be taken from the denial of a motion to postpone a trial and, in fact, states that there might be cases where that would be the proper course to pursue; but it points out why it would be best to follow the other course of permitting an inquest to be taken and then moving in Special Term to open the default. Concededly, the order itself is an appealable one, being one affecting a substantial right. Should this court, upon the hearing of the appeal, reverse the order appealed from, the lower court would undoubtedly grant leave to the defendant to open the default and determine the same upon the merits.
MacLEAN and DAYTON, JJ., concur.
Motion denied.