
    Mina Spero and Others, Respondents, v. Supreme Council, American Legion of Honor, Appellant.
    
      Trial Term New York county—engagement of counsel in the trial of another case— right of the client to have his case passed on the day calenda/r is not affected by the fact that he also sets up the absence of a witness.
    
    Where, when a case is upon the day calendar of the New York Trial Term, an affidavit is submitted - to the court stating that the defendant’s counsel, who is to try the case, is actually engaged in the trial of a case in the United States Circuit Court, the defendant’s right to have the case passed under such circumstances is not affected by the fact that an additional reason which he presents for having the case passed, viz., the absence of a witness, is untenable.
    Appeal by the defendant, the Supreme Council, American Legion of Honor, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 25th day of April, 1904, denying the defendant’s motion to open a default in the action.
    
      Henry A. Powell, for the appellant.
    
      Simon Sultan, for the respondents.
   Ingraham, J.:

This action, which was to recover the amount due to the plaintiffs as the wife and children of one Julius M. Spero by virtue of a certain benefit certificate issued by the defendant, came on for trial on the 4th of April, 1904, at which time an affidavit was handed to the court on behalf of the defendant asking that the case be adjourned in consequence of the absence of a material witness. That application was denied, but the case was held until the next day (Friday, April eighth). On the morning of the eighth of April an affidavit was submitted to the court from which it appeared that the counsel for the defendant who was to try the case was actually engaged in the trial of a case in the United States Circuit Court; that the trial of that case had commenced on the day before, and that it had not been completed and would probably take all the morning and perhaps a part of the afternoon of that day. The affidavit also stated that the deponent had not been able to procúre the attendance of the witness, referred to on the application for an adjournment, on the previous day, but expected the witness would be in court on Monday morning and, therefore, asked that the case., be passed for the day. ■ Notwithstanding jthis affidavit the court refused to pass the case, whereupon-an inquest was taken and judgment was entered in favor of the plaintiffs for the full amount of thé claim. The defendant then obtained an order to show cause why the default should not be opened, based upon the affidavit of the defendant’s counsel, from which it appeared that he was engaged in the trial of a case which commenced on April seventh about a quarter past eleven o’clock; that he was engaged in the trial of that case all of April seventh and completed súcli trial on April eighth about half past twelve o’clock in the afternoon. The fact that this affidavit was presented to the court upon ■ the call of the • calendar was not disputed; nor was it disputed that counsel for the defendant was actually engaged in the United States Circuit Court in the trial of a case when the case at bar was called for trial.

We think this case is within rule 7 of the Rules for the Regulation of the Trial Terms of the Supreme Court in the First Judicial District, and that the defendant was entitled to have the case passed for the day. The rule provides that “ in a cause upon the day calendar for trial, where it shall appear to the court by affidavit that counsel who is to try the same is * * * actually engaged in the trial of a'cause in a court of record in the counties of New Tork or Kings, the cause shall be passed for the day, or until such argument or trial is concluded, unless the trial im which the counsel is engaged is a protracted one.” The fact that counsel also asked for an adjournment upon the ground that a witness was absent, which would not" justify an adjournment, did not také away the right to present an excuse which entitled the defendant to have the case passed.. I think that the motion to set. aside the judgment should have been granted and the case restored to the Trial Term calendar for trial. The defendant should pay ten dollars, term fees and. ten dollars costs of motion.

The order . appealed from must • be reversed, the judgment and inquest vacated upon payment by defendant of twenty dollars costs and the case restored to the calendar for trial, without costs of this appeal.

Van Brunt, P. J., Patterson, McLaughlin and Laughlin, JJ., concurred.

Order reversed and judgment and inquest vacated on payment by defendant of twenty dollars costs, and case restored to calendar for trial without costs of appeal.  