Titus v. Halsted

209 A.D. 66, 204 N.Y.S. 241, 1924 N.Y. App. Div. LEXIS 8552

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 2, 1924
• Status: Published

Opinion

Finch, J.:

It appears that issue was joined on July 30, 1920. The cause appeared on the call calendar in October, 1922, and was adjourned by consent a number of times until January 9, 1924, when it was marked “ ready,” over plaintiff’s objection, and thereafter appeared daily on the day calendars of January tenth, eleventh, fourteenth, fifteenth and sixteenth. When the case was reached the plaintiff requested an adjournment for the purpose of completing an examination before trial, which was denied, and plaintiff refused to go to trial, whereupon judgment was granted dismissing the complaint.

The action is brought to recover damages for alleged violations of plaintiff’s instructions in regard to handling an account which she had with the defendants, stockbrokers. It is clear that the plaintiff could not proceed to trial without the examination of the defendants. The facts do not show, however, that such examination was conducted with due diligence or in good faith. The examination was not commenced until December twenty-seventh and was adjourned until January seventh and again to January eleventh, at which time the plaintiff knew that the defendant had insisted on having the case marked ready and was pressing the same for trial. Nevertheless, on January eleventh, the examination was adjourned until January fifteenth instead of being pressed to completion. The respondent claims that defendants’ attorney on December twenty-seventh said he would grant a reasonable adjournment to complete the examination and to prepare for trial and that except for such promise respondent would have insisted that the examination proceed daily. The appellants deny any such promise, and it is to be noted, as stated above, that after the respondent knew appellants were insisting on an immediate trial there was no effort to expedite the completion of the examination.

Moreover, there is not sufficiently shown the existence of a meritorious cause of action. The only affidavit is that of plaintiff’s, attorney, who refers in most general terms to the complaint, without even alleging any personal knowledge of the alleged transactions. This is far from being sufficient. Before a default will be opened, the moving party; must show with some probative force the existence of a meritorious cause of action. (Fitzgerald Mfg. Co. v. Alexander, 200 App. Div. 164; appeal dismissed, 234 N. Y. 608.)

It follows that the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied with ten dollars costs, and the judgment reinstated.

Clarke, P. J., Dowling, Merrell and McAvoy, JJ., concur.

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