Braverman v. Riegelmann

246 A.D. 749

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 15, 1935
• Status: Published

Opinion

Application for alternative prohibition order denied, without costs. The defendants made default on the trial. One of the defendants was ill when the case was reached on the ready calendar and an application for continuance was made. It was denied and the plaintiff took an inquest. Shortly thereafter the attorney for one of the defendants made a motion to open the default. He assumed to represent all of the defendants, although they had appeared in the action by different attorneys of record, and his appearance on the motion was apparently unauthorized as to them and in particular as to defendant Rose Held. The motion was denied. Thereafter he took an appeal in the name of all the defendants, which was likewise unauthorized. In the meantime defendant Rose Held made a motion at another Special Term to open her default; and the motion was granted on terms. The said defendant Held did not perfect the unauthorized appeal, and it was dismissed as to her. As to the defendant represented by the attorney who had taken the appeal, the order was reversed and the motion to open the default was granted by this court by a decision handed down the day this application for an alternative prohibition order was presented. The practical result is that the default has been opened as to two defendants, and as to the others, they are indifferent and have not acted to open the default taken as to them. It may be that defendant Rose Held may wish to correct the irregularities in the procedure by appropriate motions at Special Term. This she is at liberty to undertake. There is no occasion for any order of prohibition. Present — Young, Hagarty, Carswell, Davis and Johnston, JJ.