Cascade Hotel Co. v. Orleans Real Estate Co.

153 A.D. 882, 137 N.Y.S. 1054

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 1912
• Status: Published

Opinion

Per Curiam:

The action is for conversion. This case appeared upon the Trial Term calendar for trial for Monday, June seventeenth. The calendar was published in the Lato Journal on Saturday, June fifteenth, on which day counsel for the defendant called up the plaintiff’s counsel by telephone and said: “ I suppose you will be ready for trial on Monday,” to which plaintiff’s counsel replied: “Yes, I will be ready.” Upon Monday, upon the call, counsel for both sides appearing, the case was marked ready. At the opening of court, after recess, the calendar was again called and the case again marked ready. On June eighteenth the case was the sixth on the day calendar and was marked ready. On June nineteenth it appeared as the third case on the day calendar. Counsel for plaintiff answered ready, and counsel for defendant presented an affidavit of the president of the defendant company which the judge presiding declared to be insufficient to obtain an adjournment, in which he was clearly right, and directed a jury to be impaneled. Counsel for the-defendant then said, “ I refuse to go on with the case,” and left the court room. Thereafter, and before the case was opened, he returned with the attorney of record who stated that he had an undefended divorce case at the Special Term, Part III, for trial. The justice presiding at the Trial Term sent to the justice presiding at the Special Term, who agreed to hold the undefended divorce ease until the termination of the trial of this action. The trial justice then directed defendant’s counsel to examine the jury, whereupon defendant’s attorney stated: “ Your honor will note the defendant declines and will not take part in the examination of the jury,” and thereupon left the court room with counsel. It is apparent that the defendant suffered a deliberate default, and the moving papers disclose no satisfactory reason why it should be relieved of said default. The setting aside of the judgment and reinstating the case for trial was, therefore, an abuse of discretion. The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion to vacate denied, with ten dollars costs, and the judgment reinstated. Present — Ingraham, P. J., Clarke, Scott, Miller and Dowling, JJ. Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, and judgment reinstated.