
    Theodore Goodness, Appellant, v. Metropolitan Street Railway Company, Respondent.
    
      Default—payment of costs as tawed in the judgment, imposed as a condition of opening it.
    
    The fact that the defendant in a cause which stood third upon the day calendar was informed that the first cause would not be tried, but that the second would, be ready and would take about three hours, does not relieve it from the duty of having its counsel present at the opening of the court; and where an inquest is taken in the absence of its counsel, because the cause which was supposed to be ready was not tried, the defendant should, as a condition of having the default opened, be required to pay not only the costs of the motion, but the costs of the action as taxed in the judgment.
    Appeal by the plaintiff, Theodore Goodness, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Queens on the 7th day of February, -1900, granting the defendant’s motion to vacate and set. aside the default and inquest taken herein and the judgment entered thereon, and restoring the case to the calendar for trial.
    
      Algernon S. Norton [Henry W. Bookstaver with him on the brief], for the appellant.
    
      Charles F. Brown [Henry A. Robinson with him on the brief], for the respondent.
   Per Curiam:

It appears, without dispute, that when both parties • answered ready for trial, upon the call of the calendar, the case stood third for trial. Subsequently the defendant’s representative learned that the first case would not be tried, but that the second case would be ready and would take about three hours. Thereupon the defendant’s representative notified the counsel employed to try the case that he need not attend in court upon the call of the calendar, but might come later. When the court opened; the cause that was supposed to be ready for trial was not tried, and this case standing next was immediately reached. The trial court insisted that it should either be tried or go over the term, and the plaintiff, having no other alternative, took an inquest. Defendant’s representative, who was present at the time, thereupon refused to take any part in the proceedings and the default was taken. Subsequently, ujion motion at Special Term, the judgment 'which had been entered was set aside, the default opened and the cause restored to the calendar for trial, upon the payment of the trial fee, §10 costs of the motion and disbursements. The costs entered in the judgment were §188.01.

It is quite apparent that the defendant presented no valid excuse for not being ready to proceed with the trial when the cause was reached in its order. By its own act it had prevented the counsel who was to try the cause from being present in court when the case was reached. It is so common an occurrence for a cause standing at the head of the calendar to be postponed for some sudden and unexpected reason, that it is inexcusable in counsel having cases upon the day calendar not to be ready for trial, in anticipation of such a result. Scarcely a term of court is held that such contingencies do not frequently arise, and experienced counsel are as familiar with the fact as the court. The practical result is that the party who is ready is compelled either to take a default or postpone the trial, the court is obliged to adjourn for lack of business, and the judicial machinery breaks down through what is inexcusable neglect. Those who are responsible for this condition ought to be held to rigid accountability. Indulgence of these practices only creates their frequent occurrence; and from the condition arise complaints of the trial courts and litigants, the latter of whom have been guilty of no dereliction whatever.

We see no cure for what seems to be not only clear negligence, but sometimes intentional action, except to impose such terms upon those creating the condition as will prevent its recurrence. We think the terms imposed in the present case are not adequate to properly compensate the plaintiff, and we are quite sure that they will have little deterrent effect upon future practice of this character. While we have much of disposition to restore this judgment, yet we think that justice will probably be more nearly attained by imposing upon the defendant the payment of the costs of the action as taxed in the judgment.

The order should, therefore, be modified in this respect, and, as-modified, affirmed, with ten dollars. costs and disbursements to the appellant.

All concurred.

Order modified by imposing as a condition of opening the default and setting aside the judgment, the costs taxed in the judgment, and, as modified, the order is affirmed, with ten dollars costs and disbursements to the appellant.  