Miller v. Samson

84 Misc. 412, 146 N.Y.S. 132

• Court: Appellate Terms of the Supreme Court of New York
• Decided: March 15, 1914
• Status: Published

Opinion

Seabury, J.

This is an action to recover one month’s rent. The answer pleaded an alleged constructive eviction and a counterclaim, although the facts upon which the claim of eviction are predicated are not set forth. The trial was several times adjourned until December 10, 1913. On that day judgment by default was entered against the defendant. The defendant moved to open his alleged default, and this motion was denied. From the order denying his motion, the defendant appeals to this court. The only pretense offered in lieu of an excuse is that defendant’s attorney, knowing that the ease was upon the Municipal Court calendar, desired to appear in the City Magistrate’s Court on behalf of a client upon whom a summons had been served. When defendant’s attorney decided not to appear, he handed the plaintiff an affidavit showing that he was going to the Magistrate’s Court and asked the plaintiff to present the affidavit to the court when the cause was called. The plaintiff told the defendant’s attorney that he would present the affidavit, if desired, but that he would strenuously oppose an adjournment of the case because the case had been upon the calendar several times and several of his witnesses were in court having come a long distance to be present. The defendant’s attorney went to the Magistrate’s Court, and paid no further attention to the case pending in the Municipal Court. When the case was called, the plaintiff presented the affidavit of the defendant’s attorney to the court, and stated the circumstances under which he had received it. The court ordered that an inquest be taken.

Instead of excusing his own negligence, the attorney for the defendant impugns the action of the plaintiff. It seems to us that the plaintiff acted with entire fairness. He did more than he was obligated to do and all that he told the defendant’s attorney he would do. No meritorious excuse for the default was offered in the court below, and the defendant’s motion was properly denied.

In Herbert Land Co. v. Lorenzen, 113 App. Div. 802, Mr. Justice Gaynor said: “ The practice of opening defaults as a matter of course should not be continued. Such practice has lowered respect for and injured the administration of justice, and is also a wrong to diligent attorneys and litigants who conform to the rules of court, and are entitled to the protection and favor of the court against the opposite kind of attorneys and litigants. * * * They are not defaults, but abandonments.”

This language is applicable to the facts now before the court and enunciate the rule in reference to these cases which, in the absence of meritorious excuse, this court will follow.

Order appealed from affirmed, with costs.

Guy and Delany, JJ., concur.

Order affirmed, with costs.