Opinion
March Term, 1896.
B.F. Einstein, for the appellant.
Frank J. Dupignac, for the respondent.
It is very apparent to us that the counsel in this case undertook to evade the rules of the court. It is not disputed that when they agreed to set the cause down for trial on Friday, January 10, 1896, they had no intention of trying the case on that day. The defendant's counsel intended then to do just what he did do, go to Chicago and remain there until Friday had passed. Plaintiff's counsel, apparently, did not intend to try the case on that day either, but asked consent from defendant's counsel to a direction of a verdict, so as to prevent the case from going to the foot of the calendar. The counsel deliberately and voluntarily put themselves in this position, and then arranged to save the cause from going to the foot of the calendar under the rules. And to effect their purpose consent was given that a verdict be ordered, with the understanding that a motion should thereupon be made to set aside the inquest and have the cause set down for trial at an early day. The Special Term fell into the error of allowing this arrangement to succeed. This court cannot permit its rules to be so trifled with and evaded. The Special Term might very properly, under the circumstances, set aside the inquest and permit a trial of the case on the merits, but considering the action of counsel, the Special Term should not have set the case down for trial at an early day.
The order should be modified by striking out the direction that the case be set down for trial February 17, 1896, and inserting a provision that it be ordered to the foot of the calendar, and the order as so amended should be affirmed, without costs.
VAN BRUNT, P.J., BARRETT, RUMSEY and PATTERSON, JJ., concurred.
Order modified as directed in opinion and affirmed as modified, without costs.