
    Daniel M. Ransdell, Appellant, v. National Rivet and Novelty Company and Others, Respondents.
    
      Default — not opened where the party has deceived the court.
    
    A default will not be opened where it appears that the plaintiff who moves to-open it and vacate a judgment entered thereon has imposed upon his own attorney and practiced a gross deceit upon the court by exaggerating his had condition of health and pretending to be unable to travel when he could have done so and was at the time transacting business at his own office.
    Appeal by the plaintiff, Daniel M. Ransdell, 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 3d day of June, 1897, denying his motion to vacate a judgment and open a default taken against him on the cause being called for trial at the New York Special Term.
    
      John V. Bouvier, Jr., for the appellant.
    
      Frederic R. Kellogg, for the respondents.
   Patterson, J.:

The cause was duly and regularly upon the day calendar. The plaintiff’s attorneys moved to postpone the trial on the alleged ground of the serious illness of the plaintiff at his residence in Indianapolis. It was claimed that he was a material and necessary witness, and that knowledge of his illness came to the plaintiff’s attorneys after the cause had been removed from the general to the day calendar. Upon conflicting affidavits, the justice presiding at the Special Term declined to postpone the trial, and thereupon the complaint was dismissed and judgment of dismissal and for costs was entered against the plaintiff. Subsequently a motion, in due form and on notice, was made before another branch of the Court, having cognizance of litigated motions, to vacate the judgment and open the default. Affidavits were presented on both sides, and after argument the motion was denied. Two justices of the court have passed upon the merits of the application, and it is apparent that both were convinced that the plaintiff not only imposed upon his own attorneys, but practiced a gross deceit upon the court by exaggerating his condition of health, and pretending to be unable to travel to New York to attend the trial when he could have done so, as was shown by the fact that he was transacting business at his own office and at a place fifty miles distant therefrom. The deceit consisted in his sending false statements concerning his health, to the effect that he was confined by illness to his house. It was evident to the court below that he was trifling with it, and that it suited his convenience to attend to his affairs at and near his home, rather than proceed with the trial of the cause here. We cannot say that the justice by whom this motion was decided took an erroneous view of the situation ; and that is all it is necessary to say on the subject.

The order is affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J., Rumsey, O’Brien and Parker, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.  