Evans v. White

153 A.D. 881, 137 N.Y.S. 1089

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

Opinion

Per Curiam:

It appears without dispute that when the trial of this case was reached on the morning of June eighteenth the counsel for defendant was actually engaged in the trial of another action which had been commenced on the preceding' afternoon. Ho opportunity was afforded the defendant to procure other trial counsel nor should he have assumed, before the morning of the eighteenth, that his request to have the case held pending the completion of his trial counsel’s engagement would have been denied. It is obvious that the default taken under these conditions must be opened and the judgment taken thereunder vacated and set aside. The order appealed from is, therefore, reversed, with ten dollars costs and disbursements, and the motion granted, the cause to be restored to the preferred calendar of the court for trial as soon as it can lie reached. Present—Ingraham, P. J., Clarke, Scott, Miller and Dowling, JJ. Order reversed, with ten dollars costs and disbursements, and motion granted.