
    Isaac L. Miller, Respondent, v. Warren L. Samson, Appellant.
    (Supreme Court, Appellate Term, First Department,
    March, 1914.)
    Default — not opened as matter of course — reasonable excuse must be shown.
    Defendant’s attorney, upon deciding not to appear at the trial of a cause in the Municipal Court of the city of New York, handed plaintiff an affidavit showing that he was going to another court to appear for a client who had been served with a summons and asked plaintiff to present the affidavit when the cause was called. Plaintiff told the attorney that while he would present the affidavit he would strenuously oppose any adjournment because the ease had been upon the calendar several times and some of his witnesses, who had come from a long distance, were in court. On the case being called, plaintiff presented the affidavit, stated the circumstances under which he had received it, and the court ordered an inquest taken. Held, that no meritorious excuse for the default having been shown on defendant’s motion to open his default and to vacate the judgment, an order denying the motion should be affirmed.
    Appeal by the defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, and from an order denying a motion to open a default and vacate the judgment.
    Osmond K. Frankel, for appellant.
    Miller & Hartcorn (Isaac L. Miller, of counsel), for respondent.
   Seabury, J.

This is an action to recover one month’s rent. The answer pleaded an alleged constructive eviction and a counterclaim, although the facts upon which the claim of eviction are predicated are not set forth. The trial was several times adjourned until December 10, 1913. On that day judgment by default was entered against the defendant. The defendant moved to open his alleged default, and this motion was denied. From the order denying his motion, the defendant appeals to this court. The only pretense offered in lieu of an excuse is that defendant’s attorney, knowing that the ease was upon the Municipal Court calendar, desired to appear in the City Magistrate’s Court on behalf of a client upon whom a summons had been served. When defendant’s attorney decided not to appear, he handed the plaintiff an affidavit showing that he was going to the Magistrate’s Court and asked the plaintiff to present the affidavit to the court when the cause was called. The plaintiff told the defendant’s attorney that he would present the affidavit, if desired, but that he would strenuously oppose an adjournment of the case because the case had been upon the calendar several times and several of his witnesses were in court having come a long distance to be present. The defendant’s attorney went to the Magistrate’s Court, and paid no further attention to the case pending in the Municipal Court. When the case was called, the plaintiff presented the affidavit of the defendant’s attorney to the court, and stated the circumstances under which he had received it. The court ordered that an inquest be taken.

Instead of excusing his own negligence, the attorney for the defendant impugns the action of the plaintiff. It seems to us that the plaintiff acted with entire fairness. He did more than he was obligated to do and all that he told the defendant’s attorney he would do. No meritorious excuse for the default was offered in the court below, and the defendant’s motion was properly denied.

In Herbert Land Co. v. Lorenzen, 113 App. Div. 802, Mr. Justice Gaynor said: “ The practice of opening defaults as a matter of course should not be continued. Such practice has lowered respect for and injured the administration of justice, and is also a wrong to diligent attorneys and litigants who conform to the rules of court, and are entitled to the protection and favor of the court against the opposite kind of attorneys and litigants. * * * They are not defaults, but abandonments.”

This language is applicable to the facts now before the court and enunciate the rule in reference to these cases which, in the absence of meritorious excuse, this court will follow.

Order appealed from affirmed, with costs.

Guy and Delany, JJ., concur.

Order affirmed, with costs.  