
    Charles E. Haviland, Landlord-Respondent, v. Helen Bommersheim, Tenant-Appellant.
    (Supreme Court, Appellate Term, First Department,
    June, 1913.)
    Default — return of precept in summary proceedings to dispossess tenant — pleading.
    Where, on the return of the precept in summary proceedings to dispossess a tenant, his attorney withdrew upon the court's imposing, as a condition of giving an extension of time to answer, an immediate trial, and another attorney appeared the next morning and presented a verified answer, it was error for the judge to refuse to receive it and grant judgment as on default in pleading; proper practice required that the answer should be received and then such disposition made of an application for an adjournment as the exigencies of the ease required.
    As the attorney was present and duly offered the answer there was no default.
    Appeal by the tenant from a final order in summary proceedings of the Municipal Court of the city of New York, borough of Manhattan, ninth district, entered in favor of the landlord.
    Charles W. G-ould, for appellant.
    Ivins, Wolff & Hoguet (Robert Louis Hoguet, and James S. Y. Ivins, of counsel), for respondent.
   Page, J.

These proceedings were instituted by the landlord to dispossess a tenant alleged to be holding over after the expiration of the term by virtue of the termination thereof by notice. Service of the precept on the sub-tenant was made at twelve thirty-five p. m. on the first day of April, and on the tenant by delivering to a person of suitable age on the premises, and affixing a copy to the premises. The precept was returnable at three o’clock the same day. The tenant appeared upon the return.

There was no stenographer present and no record was made of the proceedings. Unfortunately the stenographer’s minutes of the proceedings on the morning of April second appear to be incomplete. It appears from the record that the attorney for the tenant had withdrawn the day before when the court had imposed, as a condition of giving an extension of time to file an answer, an immediate trial of the issue and another attorney appeared the next morning and presented a verified answer. It does not appear from the record, except from the statement of the judge, that this offer was preceded by an application for an adjournment of the trial. The justice refused to receive the answer and granted judgment as on default in pleading. In this he erred. The answer should have been received and then such disposition made of the application for an adjournment of the trial as the exigencies of the case required. If the justice had refused to adjourn the trial the counsel for the tenant might have still remained and attempted to defeat the landlord on cross-examination of the landlord’s witnesses or by the production of documentary evidence, even if he did not have witnesses present in his own behalf. This was not a judgment by default, as the attorney was present and duly offered his answer.

The final order is reversed and a new trial ordered, with costs to appellant to abide the event. The answer may be filed nunc pro tunc.

Seabtjby and Bijttb, JJ., concur.

Final order reversed and new trial ordered, with costs to appellant to abide event.  