Dewey v. Agostini Bros. Building Corp.

246 A.D. 667

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

Opinion

The action was commenced to recover the reasonable value of work performed and machinery used, under a contract between the plaintiff and defendant. Upon the trial the defendant defaulted in appearance. An inquest was taken, findings made, and judgment entered in favor of the plaintiffs. Motion was made to open the default and to permit defendant to try its case, which motion was denied. Upon permission granted, a second motion to open the default and to vacate the judgment was denied. A difference arose between the defendant and its attorney as to the payment of his fees, and defendant’s attorney wrote defendant on five different days between March twenty-third and the opening of the court, and telephoned to the local office of the defendant, giving notice that he would not appear under any circumstances unless paid according to the terms stated by him. The action of the attorney for defendant constituted ample reason for the defendant to believe that it could not rely upon his defense, and its failure to secure other counsel was inexcusable and the Special Term was correct in so holding. The failure of the officials and employees to sign their testimony taken before trial is an added reason for a denial of the motion. Order unanimously affirmed, with ten dollars costs and disbursements. Present — Hill, P. J., Rhodes, McNamee, Crapser and Heffernan, JJ.