Bitterman v. Weinstein

135 A.D. 910, 120 N.Y.S. 401

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 15, 1909
• Status: Published

Opinion

Per Curiam:-

Plaintiff appeals from an order opening defendant’s default. The action is to foreclose a mortgage, it being sought incidentally to hold the respondent Weinstein upon a written guaranty to pay any deficiency. His answer is obviously sham, except perhaps that he sufficiently denies due notice of default and a waiver of further notice. The action came on for trial on June 16, 1909, and was adjourned until June twenty-second, to enable the respondent’s counsel to conclude an engagement upon which , he was then occupied. That engagement terminated on June twenty-first, when counsel should have held himself prepared to enter upon the trial of this action. Instead of doing that he entered upon other engagements, sending a clerk to procure a further adjournment of this action. The court very properly refused to further adjourn it, and respondent's default was taken. The course pursued by defendant was nothing short of trifling with the court, especially as the only issue raised by defendant’s answer was an extremely simple one, and other counsel could have easily been procured to try it. The facts much resemble those in Ca/rruth v. Rosenthal (124 App, Div. 670), where a default was suffered by the same counsel who defaulted in the court below in the present case, and an order opening his default was reversed on appeal. The order appealed from is reversed, with ten dollars costs and disbursements, and the motion denied, with ten. dollars costs. Present — Ingraham, McLaughlin, Clarke, Houghton and Scott, JJ. Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.