
    (116 App. Div. 851)
    ROSENFELD v. CENTRAL VERMONT RY. CO.
    (Supreme Court, Appellate Division, Second Department.
    January 25, 1907.)
    Judgmen'i^-Default—'Vacation—Gbottnd.
    A cause was ordered on the day calendar for a specified day. On the call of the calendar on that day, an affidavit for an adjournment, by a sister of plaintiff’s attorney, averred that he was ill with an attack of “inflammation of, the sinews,” and that his condition required a rest from business for a few days. An adjournment was denied-, but the case was held until the next day. The person in charge of plaintiff’s attorney’s office was informed that the case would be tried that day, or a sufficient affidavit for an adjournment presented: The next day no one appeared for plaintiff, and the cause was dismissed. On a motion to open the default the affidavit for the adjournment was presented, together with an affidavit by the attorney for plaintiff, averring that his illness was inflammation of the sinews of his right hand, which incapacitated him from work. His affidavit also stated that he had attempted to find plaintiff, but had failed to do so. Meld, that the default was improperly set aside.
    [Ed. Note.—For cases in point, see Cent. Dig. vol. 30, Judgment, §§ 282, 288.]
    Appeal from Special Term, Kings County.
    Action by Morris Rosenfeld against the Central Vermont Railway-Company. From an order opening a judgment of dismissal taken against plaintiff on his default, defendant appeals. Reversed, and motion to open default denied.
    Argued before HIRSCHBERG, P. J., and JENKS, HOOKER, GAYNOR, and RICH, JJ.
    Martin S. Lynch for appellant.
    Abraham B. Schleimer, for respondent.
   GAYNOR, J.

This cause was on October 1st, 1906, ordered on the day calendar for October 15th, on the defendant’s motion, a formen judgment therein for the plaintiff having been reversed. 97 N. Y. Supp. 905. On October 13th the clerk of the plaintiff’s attorney brought an affidavit to the attorney for the defendant, and asked him to present it to the court on the call of the day calendar on October 15th and try to get an adjournment for a few days. This the attorney for the defendant consented to do. The affidavit was by the sister of the plaintiff’s attorney. It stated that the said attorney was taken suddenly ill on October 12th “with an attack of inflammation of the sinews”; that he was under the care of a doctor named, “that his condition is such as to require a rest from business for a few days” and that “he is very ill today, and is in bed, unable to leave the house.”

The defendant’s attorney presented the affidavit to the court on the morning call, as the rules require, the presentation of excuses orally being prohibited by such rules. The learned judge presiding ruled that the affidavit was insufficient and marked the cause ready, but on the request of the attorney for the defendant held it until next day, stating that if it were not tried then it would be put at the foot of the general calendar. The said attorney forthwith communicated these facts to the office of the plaintiff’s attorney, and informed the person in charge that he would be ready for trial next day, and that some one must be present to take charge of the plaintiff’s side with a sufficient affidavit if an adjournment was to be had. The next morning no one appeared for the plaintiff. The case was held until noon, and then dismissed by the court.

This motion to open the default was made on the said affidavit presented for a postponement, and also on the affidavit of the plaintiff’s attorney. This latter reveals for the first time what “sinews” of the said attorney were inflamed; what his illness was; viz., “inflammation of the sinews of my right hand * * * which illness has incapacitated me from any work.”

No trial judge could be expected to postpone a cause on such an affidavit as was presented to him. He has to protect the other side as well as the court from imposition. The doctor and the attorney refrained from making an affidavit. But in addition to this the plaintiff’s .attorney failed to send any one to answer the case next day; it was-abandoned. There was no default through inadvertence, mistake or accident, but a willful abandonment of the case. Nevertheless the learned justice at Special Term opened the case and reinstated it for trial, and without terms.- This practice should not be continued. The side that is diligent, respectful of the court and the administration of justice, and observant of the rules, should not be made the victim of those who are not. Loehr v. Brooklyn Ferry Co. (Sup.) 101 N. Y. Supp. 209.

Moreover, the affidavit of the plaintiff’s attorney states that when he was served with the motion papers to put the cause on the day calendar (viz., about October 1st) he notified the plaintiff by several letters and a telegram to call and see him, but he could not be found, and has not been found, having moved to some place unknown. “I have tried my best efforts to find the plaintiff, but said plaintiff could not be found,” are the final words of such affidavit on this head.

The order should be reversed and the motion denied.

Order reversed, with $10 costs and disbursements, and motion denied, with costs. All concur.  