Van Alstrand v. House

3 Abb. Pr. 226

• Court: New York Supreme Court
• Decided: September 15, 1856
• Status: Published

Opinion

Balcom, J.

plaintiff’s attorney should have appeared before Judge Shankland and asked him to postpone the hearing of the motion until he could obtain the plaintiff’s affidavit to oppose it. He offers no excuse for not doing so, except that he thought it useless to go before Judge Shankland without the plaintiff’s affidavit to oppose the motion on its merits. If the plaintiff’s attorney had presented his affidavit to Judge Shankland, showing that he had used due diligence to procure the plaintiff’s affidavit, and had been unable to obtain it, the judge could' have ordered that the motion stand over for hearing at some future special term, to enable the plaintiff’s affidavit to oppose it to be procured. He was the proper judge to determine whether the plaintiff’s attorney had a good excuse for not being ready then to oppose the motion on its merits. Had he ordered that the hearing of it should be postponed, the terms of the postponement would have been fixed by him.

The motion to open the default must be denied, with $10 costs, for the unexcused neglect of the plaintiff’s attorney to appear and ask for a postponement of the hearing of the original motion.