
    Thomas Graves, Appellant, v. Robert J. Graham, Respondent.
    (Supreme Court, Appellate Term,
    March, 1897.)
    1. Service — Vacation of.
    Service of process upon a nonresident who voluntarily came into the state and submitted to such service under and in pursuance of an agreement that the case should be tried at once, is properly vacated' where the plaintiff refuses to. proceed with the trial and demands a jury, by which the trial is postponed to a time at which it would seriously inconvenience the defendant to attend.
    2. Same Waiver;
    An appearance by the defendant after notice of plaintiff’s unwilling-ness to proceed is not a waiver of the agreement of the latter.
    Appeal by the plaintiff from an order made at General Term of the City O.ourt of New York, which affirmed an' order vacating and setting aside the- service of the: summons and execution of an order to arrest the defendant,, obtained in this, action.
    O, P. Buell and H. E. Lee, for appellant.'
    Jones &■ Govin, for respondent.
   Bisohoep, J.

The . older from which this appeal is taken directed that the service of the summons and the execution of am order to arrest the defendant be set aside, the basis of the matter being that the defendant’s appearance and submission to the jurisdiction were in performance of an agreement upon the plaintiff’s part to proceed at once with the trial of the cause, waiving a jury trial, which, because of the summer adjournment of the Trial Term, could not then be had,, and that the' plaintiff, after availing himself of the defendant’s appearance,, repudiated the agreement and declined to try the cause as stipulated.

Our province is not to determine controverted questions of fact,, which the- justice below has resolved with the approval of the General Term, but extends only so far as a question of law is presented by the record, and so, in this case, the inquiry is whether the order under review was warranted, taking all the allegations of the-moving affidavits most strongly in favor of the respondent, and we can have no hesitation in holding that it was. Meyers v. Cohn, 4 Misc. Rep. 185; Paige v. Chedsey, id. 183.

• The defendant, during the interval of time material to this litigation, resided without the jurisdiction of the court, and the order of arrest, obtained July 8, 1896, could not be executed.

A seafaring man by occupation, he intended to commence a voyage on the 12th day of September, 1896, and was prepared to come into the jurisdiction, fumishbail and present his defense to the plaintiff’s action should the trial proceed at a time sufficiently early for him to join his ship, and, with a view to thus disposing of the matter, his counsel, together with counsel for the plaintiff, appeared before one of the justices of the court below at Trial Term, on September 8, 1896, and it was then agreed that the trial should be had on the 10th of the same month, without a jury, since none was obtainable, the defendant to appear voluntarily at that time. That there was actually such an agreement upon the plaintiff’s part is not seriously disputed and is amply supported by the record.

Accordingly the defendant was notified by his counsel to come to this city, which he did, arriving on the morning of September 9th, and proceeding to procure his bail,- blit it appears that at half-past six o’clock in the evening of the day before the plaintiff’s attorney had notified the clerk of the defendant’s attorneys that it would be inconvenient for them to try the cause as arranged, suggesting a later date, which was not acceded to.

Hpon hearing of this the morning of September 9th, defendant’s counsel served a notice that the defendant would be produced in court as agreed, and that an immediate trial would be demanded.

Defendant, accordingly, was produced, his bail was accepted, and the cause moved for trial, but the motion was met by the plaintiff’s counsel demanding a trial by jury, and, upon this demand, the cause was set down for trial at the 'October term of the court, a result which, if suffered to remain unaffected, worked an unmitigated injustice to the defendant, under the circumstances of the case.

The appellant’s contention is that there had been, in effect, a mutual rescission of the agreement before the defendant submitted himself to the jurisdiction of the court, but while the affidavits presented for the plaintiff upon the motion tend to show some such fact, this was riot the fact accepted by the justice, who credited the express denial of the matter contained in the affidavits submitted in support of the motion, and, for this appeal, his finding of the fact must also be ours. Higgins v. Dewey, 27 Abb. N. C. 81.

It is further claimed that there was a voluntary appearance by the defendant, with a waiver of the plaintiff’s agreement, because ■ after notice that the plaintiff’s attorneys were unwilling to try the cause as. stipulated (referring to the conversation between counsel and the defendant’s attorneys’ clerk on the evening of September 8th), the defendant nevertheless appeared.

If, from the conversation referred to, a distinct repudiation of the agreement by the plaintiff’s representatives was to be gathered,’ which is by no means clearly the fact, still the defendant’s appear- ■ anee was not in acquiescence with any such repudiation, but was directly in affirmance of the agreement, as appears from the notice of appearance which the plaintiff’s attitude called forth, and from the proceedings in court when the appearance of the defendant in person was made.

It requires no argument to show that there was no waiver under these circumstances since there was not a single act Upon the. defendant’s part inconsistent with the agreement from which consent to its rescission could be' implied. He stood directly upon the terms of the stipulation and his right so to do was not affected by the other party’s breach.

A party coming within the jurisdiction voluntarily, under an agreement which provides for a specific course of procedure in the litigation, is to be protected, where, through the adverse party’s disregard of his own obligation, the appearance is taken advantage of, contrary to the terms of the agreement (Allen v. Wharton, 20 Civ. Pro., 120; 13 N. Y. Supp. 38); and there can be no doubt that the court properly relieved the' defendant in this case. 22 Am. & Eng. Ency. of L. 166, and cases collated in note 1; Wilson v. Donaldson, 3 Lawyers’ R. Anno. 266, note.

Order affirmed, with costs.

Daly, P. J., and MoAdam, L, concur.

Order affirmed, with costs.  