
    Paul W. Eno, Plaintiff, v. Howard H. Tracy, Defendant.
    Supreme Court, Steuben County,
    August 9, 1927.
    Judgments — default — defendant’s attorney failed to appear at trial — motion to open default denied.
    The motion by the defendant to open a default judgment is denied since it appears that on the morning the term of court opened at which the ease was tried, the attorneys for the defendant were informed that the case would be moved for trial and that while they thereafter endeavored to have the trial of the case delayed on the ground of the absence of one of the attorneys, the attorneys were' informed of the fact that the case would be moved for trial prior to the time when arrangements were made which led to the absence of the attorney from the State. The inference is that the defendant’s attorney intentionally suffered a default upon the assumption that the judgment could be opened. There is no proof of any mistake, inadvertence or surprise and it is held that the facts shown manifest negligence on the part of defendant’s attorneys.
    Motion by defendant to open default.
    
      McDowell & McDowell, for the motion.
    
      Cole & Knapp, opposed.
   Thompson, J.

The trial of this case at the April term resulted in a disagreement of the jury. It was then placed upon the June calendar, and about a week before the opening of the term defendant’s attorneys wrote plaintiff’s attorneys asking that the case be held until after the second week because of the contemplated absence from the State of one of the defendant’s attorneys. On the morning the term opened (June sixth) defendant’s attorneys received a note from plaintiff’s attorneys to the effect that no courtesies whatever would be extended and that the case would proceed to trial. Whereupon defendant’s attorneys the same day (Monday) telephoned to Mr. C. V. Stowell, an attorney, requesting him to try and have the case held until the attorney should return from Detroit, and asking him to inform the attorney if such arrangements could not be made. Nothing more was done or learned by defendant’s attorneys until Friday, June tenth, when they received a card from the clerk of the court stating that the case was on the day calendar. They then again communicated with Mr. Stowell who informed them that the plaintiff’s attorneys had promised on the previous Monday to get in touch with defendant’s attorneys at once. (Plaintiff’s attorneys deny having made such an agreement with Mr. Stowell.) With this, they concluded, as the attorney states in his affidavit: That it was then (June 10) too late for deponent to make a motion to hold the case until his return before leaving for Detroit on the 12th; that during deponent’s absence and without further notice to deponent, plaintiff’s attorneys proceeded to take judgment.” The case remained on the day calendar from then (Friday, June tenth) until Thursday, June sixteenth.

In the meantime, on June twelfth, defendant’s attorney left the State for a week’s absence on a business trip; on Monday, June thirteenth, Mr. Stowell, representing defendant, unsuccessfully applied for an- adjournment of the trial, solely on the ground of the attorney’s absence from the State, and on the following Wednesday he asked a further continuance on the same ground, which was also refused. So we have a case on the day calendar for a week without any effort being made to prepare it for trial; without legal excuse for its postponement, and with the other side present in court ready for trial and resisting all efforts to put the case over the term. It may also be observed that as early as a week before the opening of the term the attorney had arranged to be absent from the State on the second week of the term, and that on the first day of the term, which was nearly two weeks before the default was taken, he knew that his adversary would not consent to a postponement.

It is apparent from a review of these facts that defendant had had his day in court (2 Words & Phrases, 1838), and the inference is inescapable that his attorney intentionally suffered this default upon the assumption that he would be successful in opening it thereafter. In the circumstances such relief must be withheld. (Colonial Fuel Corp. v. Kahn, 214 App. Div. 83, 85; Cascade Hotel Co. v. Orleans Real Estate Co., 153 id. 882; Warth v. Moore Blind Stitcher & Overseamer Co., 125 id. 211.)

The record evulgates neither mistake, inadvertence or surprise, and it must be held that the facts stated manifest negligence without excuse. (Utica Gas & Electric Co. v. Sherman, 212 App. Div. 472; Thorburn v. Gates, 177 id. 474, 476; United Textile Print Works v. Black Knitting Mills, Inc., 123 Misc. 299; Browning v. Billingsley, 185 N. Y. Supp. 1, 2.)

The motion is denied, with ten dollars costs. So ordered.  