Root v. Goodspeed

2 N.Y. City Ct. Rep. 173

• Court: City of New York Municipal Court
• Decided: July 15, 1885
• Status: Published

Opinion

McAdam, Ch. J.

The action was called on the day calendar on June 19, 1885, and was adjourned till the 26th, on condition that defendant gdes on trial on the 26th or consents to an inquest.” This condition was incorporated in a written stipulation signed by the respective attorneys. "On June 26 an inquest was taken. Application is now made to open the default, and the excuse offered is that on the 26 “ the defendant was out of the State on an important business transaction, and that she could not be present at the trial without great financial loss, far exceeding the amount involved in this suit.”

The application to open the default will be denied on two grounds: 1. The written stipulation authorized the inquest. 2. The excuse offered is insufficient. The court “ may relieve a party from a judgment taken against him through his mistake, inadvertence, surprise or excusable neglect” (Code, § 724); but not where he deliberately neglects the opportunity of having his day in court, for business which he regards as of more importance. The true rule is that in legal matters all other business must, be laid- aside, that the party litigant may appear and defend his rights. He must waive either for the other, and may make his choice, but, having made his election,, he must abide by it.

Motion denied, with $10 costs.