
    Henry L. Prager, Respondent, v. Hulbert T. E. Beardsley, Appellant.
    First Department,
    July 13, 1909.
    Judgment-^- practice—vacating judgment by default— discretion of court not unlimited..
    Where after a case on the day calendar has been called and marked ready by the’ plaintiff and has been passed several times because of the plaintiff’s failure to procure counsel to try the case, and the plaintiff, when notified by his attorney that the case would soon be ready and that he should attend at court, .refused to do só, stating that he would prefer to have the case dismissed and reopened, it is an abuse of discretion to excuse the default and vacate a judgment thereon entered.
    
      The court has not unlimited discretion to excuse defaults, but should only do so when taken by mistake, inadvertence, surprise or excusable neglect, as provided by section 724 of the Code of Civil Procedure.
    Appeal by the defendant, Hnlbert T. E. Beardsley, 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 17th day of May, 1909, granting the plaintiff’s motion to vacate a judgment and for a new trial.
    
      John Ewen, for the appellant.
   McLaughlin, J.:

Action to recover damages for an alleged slander. The complaint was dismissed at the trial on the plaintiff’s failure to appear. Plaintiff failed to appear on the day fixed for trial because he was informed, according to his affidavit, by his counsel that it would not be necessary for him to do so and that an adjournment would be had owing to the sickness of counsel.

The case appeared on the call calendar March nineteenth and was set for trial on the twenty-sixth of that month. The day when the case i first appeared on the day calendar, April eighth, and was called, the plaintiff, through his attorney, Mr. Seasongood, answered “ Ready,” and the plaintiff was informed of that fact, in response to which lie said he had been endeavoring to retain counsel to try the case but had been unable to do so, and he instructed Mr. Seasongood if the case were sent out for trial to go ahead and try it. The case was again called at two o’clock in the afternoon of April eighth, and was then passed until Monday, April twelfth. Seasongood again communicated with the plaintiff, advising him of the situation, in response to which the plaintiff said that he had not yet secured counsel and that if reached ” Seasongood “ should try the case.” And the case was held subject to engagement of defendant’s counsel. Seasongood, however, insisted that the action be se.t down for trial, urging among other reasons that he was obliged to go to Baltimore on the evening of that day and if the case were not sent out at once for trial he might not be in a position to conclude the trial that day. Shortly thereafter the justice having charge of the call calendar announced that there would be no further call of the calendar until two o’clock in the afternoon, and Seasongood then applied to the court to have the case postponed until the fifteenth in order to enable him to return from Baltimore, at the same time saying he was personally to try the action and no suggestion was made then or in fact at any other time that any other counsel had been engaged.

From, the moving papers, however, it does appear that on the fourteenth of April an effort was made by the plaintiff to z'etain Mr. Palmer. Mr. Palmer being' sick at the time was unable to go ahead and try the case, but said he thought he might be able to do so the following Monday.” On the following morning, April fifteenth, plaintiff and his attorney had a conversation, in which the plaintiff advised the attorney "that he had re tain ed Mr. Palmer to try the case, but again asked Mr. Seasongood to attend on the call of the calendar, stating that Mr. Palmer’s representative would also be there with an affidavit asito Mr. Palmer’s illness. Seasongood told the plaintiff that the case was about to be reached and the plaintiff had better, be in court, to which the plaintiff replied, “ that he had an important engagement and did not think it was necessary for him to be there.” The case was called on the fifteenth and the defendant was present with his witnesses. Seasongood was present in court and applied for an adjournment, stating that Mr. Palmer had been retained to try the case, and wás ill, but the learned justice having charge of the calendar, in view of the previous adjournments obtained at the request or on motion of the plaintiff, denied the application, and sent the case out for trial in Part IX- Mr. Seasongood at once notified both his own office and the plaintiff that the case had been sent out for trial and that the plaintiff had better attend at once. Owing to the fact that there was an Unfinished case on trial before the justice in Part IX, some little time elapsed before the case was reached. ..When it was reached Mi*. Seasongood again applied for an adjournment on the grounds theretofore stated, which application was denied. He then stated that he had but one witness in court, and that he might not be able to procure the presence of the plaintiff until two o’clock that day, and asked that in the event that the impaneling of. the jury and the examination of the witness should not occupy the full morning session that the case be adjourned until that time. The learned justice said he would proceed with the case and would determine what to do when, the situation presented itself. A jury was chosen, Seasongood proceeded and completed his opening, and then he or his representative informed the plaintiff by telephone that he must attend at once — that it was impossible to adjourn the case any longer, and that he must be ready at two o’clock in the afternoon, to which the plaintiff responded, “absolutely nothing doing. That case must not go on. I. will not come down to court to-day. I would prefer that the casé be dismissed, in which event I can have it reopened.” Seasongood thereupon advised the trial justice of the situation and asked leave to withdraw a juror. This was denied and the complaint was dismissed upon plaintiff’s failure to proceed. Üpon the motion the foregoing facts appear, and I think the court erred in- vacating the judgment and directing that the Case be resto.réd to' the calendar for trial. The case had been regularly noticed for trial and the trial actually entered upon, and no good reason appears or is suggested why the plaintiff • did not proceed, except for his own convenience.

The court, while having discretion to excuse defaults, does not have unlimited discretion. The Code of Civil Procedure (§ 724) states when a default may be excused. It is when the judgment is taken by “ mistake, inadvertence, surprise or excusable neglect.” The judgment in this action was not taken by mistake, inadvertence, surprise or excusable neglect. It was taken because the plaintiff absolutely refused without excuse to appear, and because he preferred to, have his default taken and then speculate on what the court might do when he applied to have such default excused. Parties cannot trifle with the court in this way. If they choose to do so, they must abide by the consequences.

X think the order should be reversed, with ten dollars costs and disbursements, and the motion to excuse the default denied, with ten dollars costs.

Ingraham, Laughlin, Clarke and Houghton, JI., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. ,  