Sutter v. City of New York

106 A.D. 129, 94 N.Y.S. 515

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 1905
• Status: Published

Opinion

Miller, J.:

Nine so-called “ water cases,” including the case at bar, were placed on the day calendar for trial at Special Term, and when called were announced to be “ready” by both sides, pursuant to an arrangement between the attorneys to try all the cases before the same justice. At the conclusion of the evidence in the first case the justice presiding announced that upon the authority of a case recently decided by this court

* he would decide in favor of the plaintiff and reserve the question of damages for further consideration ; whereupon counsel for the defendant moved for a postponement of the other eight cases on the ground that the ruling of the court denied his client its day in court and that its interests would be prejudiced by a trial of said causes before said justice. Upon a denial of this motion, though concededly prepared for trial, he refused to proceed and permitted inquests to be taken in each case. The plaintiff now appeals from an order granted at Special Term vacating the judgment so rendered, and it is stipulated that the appeals from similar orders in the other seven ca,ses shall abide the event of this. ■ ,

Said counsel appeared for the defendant on the motion resulting in the order appealed from, and by affidavit sought .to justify his conduct, and the brief submitted by the defendant on this appeal is an attempted justification instead of an apology. It is to be noted that these judgments were not taken by default, in which case the -courts Strive to relieve a-party from the consequences of his attor- . ney’s neglect. But where a party is actually represented by counsel in court, fully prepar'ed to try the cause, 'and such counsel refuses to proceed-for the sole reason that he thinks, the justice presiding may decide against him, the judgment thus rendered cannot be vacated as though taken by default, and no reason can be suggested for disturbing it which could not be urged with equal force to vacate a judgment alleged to have resulted from the incompetence of the attorney conducting the trial. It was urged upon the oral argument that the rights of the defendant should not be prejudiced by the. conduct of its counsel. The defendant has not been denied its day in Court; through its counsel it chose not to avail itself of the right to be heard for reasons which do not commend themselves to us; and as no other ground was presented for vacating the judgment, the order should tie reversed, with ten dollars costs and disbursements.

Hieschbeeg, P. J., -Bartlett, Jenks and Rich, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and judgment reinstated.

See Dinger v. City of New York (101 App. Div. 303).— [Rep.