
    Antonio Cebrelli, Appellant, v. William Bradley, Respondent.
    (Supreme Court, Appellate Term,
    November, 1909.)
    Postponement — Nature and grounds of postponement — Engagement of counsel.
    The rule of court, that actual engagement of counsel is legal, ground for an adjournment of the trial of another cause, is necessary for the proper conduct of the courts and must be construed with due regard to the orderly procedure of court business.
    Where an attorney is in attendance at a trial part of the Supreme Court actually waiting for the immediate commencement of the trial of his cause it is manifestly improper for a justice of the City Court of the city of New York to order said attorney to appear before said justice in another cause. While it might be fairer for an attorney on applying in such a ease for an adjournment of a cause on the day calendar to state the exact facts rather than rely on the usual form of statement of “actual engagement” in a trial, his failure so to do is not, in itself, evidence of bad faith.
    Appeal by the plaintiff from an order of the Oity Court of the city of New York, granting plaintiff’s motion to restore the case to the calendar upon terms.
    Pheil & Bird, for appellant.
    James A. Lynch (John H. Mulcahey, of counsel), for respondent.
   Lehman, J.

On May 18, 1909, this case appeared upon the day calendar of the City Court. Mr. Bird, one of -the plaintiff’s attorneys, then presented an affidavit of his partner, Mr. Pheil, who was to try the case, stating that the plaintiff’s daughter was almost at the point of death and the plaintiff was therefore unable to appear in court. This affidavit was accompanied by a certificate of the attending physician that plaintiff’s child was suffering from meningitis and had only a few days to live. The trial justice, upon the objection of the managing clerk of defendant’s attorney to an adjournment, stated that this was not a legal excuse. Mr. Bird then stated that his partner, Mr. Pheil, who was to try the case, was actually engaged in the trial of a case in the Supreme Court. He had no affidavit ready but offered to procure and file one; and, according to the affidavit of the managing clerk of defendant’s attorney, he was given ten minutes to procure the affidavit. At the expiration of the ten minutes the case was dismissed. Five minutes thereafter, at about ten thirty-five a. m., an affidavit of Mr. Pheil was presented, which stated that he was actually engaged in the trial of an action in the Supreme Court and would be engaged there the entire day. The trial justice directed that the affidavit be filed and that a motion be made at Special Term to open the default.

It appears by affidavit presented upon that motion that Mr. Pheil was also the attorney for the defendant in a case then pending in the Supreme Court; that the case had been sent to Part V for trial; that the attorney for the plaintiff in that action was then engaged in the trial of another action in the same part, and the trial justice directed that the ease which Mr. Pheil was to try should await the conclusion of the earlier trial; that, on May seventeenth, Mr. Pheil was directed to be ready at the opening of court the next morning; that the earlier case went to the jury on May seventeenth and that, on May eighteenth, after the reading of the jury’s verdict, Mr. Pheil’s case was immediately reached; that the case was not actually tried because the attorney for the plaintiff in that case, at ten thirty-five, unexpectedly asked for leave to discontinue.

I find in the record no reason to doubt the good faith of Mr. Pheil in this matter. The plaintiff’s child had actually died on the day the adjournment was asked. I cannot doubt that, if the defendant’s attorney had been in court himself, the adjournment would have been granted without objection; there was therefore no negligence nor deceit in the failure of Mr. Pheil to present an affidavit that he was engaged in another court. There was apparently no deceit in the statement that he would be engaged the entire day in the trial of the action, because the attorney for the plaintiff in that action has submitted an affidavit that he had no intention of asking a discontinuance until he found that his client did not intend to appear. The only question then remaining is whether Mr. Pheil had a right to swear that he was actually engaged ” in the trial of an action. The rule of the court that actual engagement of counsel is a legal ground for an adjournment is necessary for the proper conduct of the courts and must be construed with due regard to the orderly procedure of the court’s business. When an attorney is in attendance at a trial part, actually waiting for the immediate commencement of the trial of his case, it would be manifestly improper for another justice to order him to appear before such justice in another case. Fiesel v. White Sewing Machine Co., 134 App. Div. 358. It might be fairer for an attorney to state the exact facts rather than rely on the usual form of statement of “ actual engagement- ” in a trial, but failure to do so is not in itself evidence of bad faith. The circumstances, therefore, present a ease where the justice should have granted the motion to open the default without terms; and the order, accordingly, should be modified by striking out the terms and affirmed, as modified, without costs on this appeal, but with disbursements to appellant.

Gildersleeve and Seabury, JJ., concur.

Order modified and affirmed, without costs on this appeal, and with disbursements to appellant.  