Marotta v. Marvullo

160 N.Y.S. 1002

Opinion

SHEARN, J.

Plaintiff’s counsel was induced to consent to one week’s adjournment of the trial to enable new counsel for the defendant to familiarize himself with the facts and properly prepare for trial. Instead of filing the affidavit necessary to procure the adjournment, defendant’s counsel, to whom the favor had been extended, answered “Ready,” and procured the dismissal of the complaint on default caused by the natural inability of plaintiff’s counsel to proceed without witnesses that would have been on hand, but for the representations made by defendant’s counsel. Nevertheless, on opening the default thus brought about by defendant’s counsel, and without any fault on the part of plaintiff’s counsel, the court required the plaintiff to pay a full bill of costs, thus rewarding a method of practice which, unexplained, seemingly merited discipline instead. No terms should have been imposed upon a party that was not only innocent but deceived.

The order, in so far as appealed from, is reversed, with $10 costs and disbursements. All concur.