
    Joseph Damsky, an Infant, by Adolph Damsky, his Guardian ad Litem, Plaintiff-Appellant, v. Charles Dochterman, Charles Dochterman, Jr., and Frederick L. Dochterman, Doing Business Under the Name and Style of Charles Dochterman & Sons. Defendants-Respondents.
    (Supreme C-ourt, Appellate Term,
    January, 1909.)
    Appeal — Judgments and orders appealable — From Marine Court or City Court of New York or Brooklyn — Orders made in progress of cause in general — Order denying motion for postponement of trial.
    Former adjudication — What matters are concluded — Orders in general — Order denying motion for postponement — Not conclusive of motion for new trial.
    New trial — Grounds — Surprise, accident or mistake —Absence of witness or evidence — Not concluded by denial of motion to postpone on same ground.
    Where plaintiff’s motion for an adjournment lias been denied and judgment is taken against him because of his inability to present his case on account of the absence of a necessary witness, his motion to open the judgment should be considered upon its merits; and, in the first judicial department, an order denying the motion upon the ground that the question was concluded by the denial of the motion to adjourn the case is erroneous, and will be reversed, and the motion to open the judgment in a proper ease will be granted.
    An order denying a motion by plaintiff for an adjournment when the ease is called before trial is appealable.
    
      Appeal by the plaintiff from an order of the City Oourt of the city of New York denying an adjournment of the above entitled action and dismissing the complaint and also from an order denying a motion to open the plaintiff’s default and restore the case to the calendar for trial.
    Abramson & Potter, for appellant.
    Frank Verner Johnson (Louis Cohn, of counsel), for respondent.
   Per Curiam.

The plaintiff’s motion to open a dismissal, suffered at the trial because of the absence of a necessary witness, was denied upon the ground, as appears from the papers on appeal, that the question was concluded by the determination of the court at the time when the cause was called for trial and an adjournment refused, which determination was to be reviewed only by direct appeal from an order denying the application for an adjournment. This rule of practice, announced by the Appellate Division of the Second Department (Warth v. Moore Co., 125 App. Div. 211), has not been adopted in the First Department. The case of Marchesini v. Scaccianoce, 110 App. Div. 130, is authority for the procedure followed by the plaintiff in seeking the exercise of the court’s discretion at Special Term for the purpose of obtaining relief from a judgment taken at the trial because of his inability to present his case after an adjournment had been refused, and the facts presented on the motion being such as to require the opening of the judgment, on terms, in the proper exercise of discretion (Richard v. Nat. Dis. Co., 95 N. Y. Supp. 547), the application shoitld have been entertained on the merits and granted.

There is also before us an appeal by the plaintiff from an order entered at Trial Term upon the denial of the application for an adjournment. This order affects a substantial right and, therefore, is appealable (Code Civ. Pro., §§ 3189, 1347, subd. 4), but, in view of the distinction in character between the application for an adjournment at the trial and a subsequent motion to open the judgment, on terms, as noted in Marchesini v. Scaccianoce, supra, the ruling of the justice at Trial Term, upon the affidavits presented, does not disclose reversible error.

Order denying motion for adjournment affirmed, with ten dollars costs and disbursements; order denying motion to open judgment of dismissal reversed, with ten dollars costs and disbursements, and motion granted upon payment of costs before notice of trial and ten dollars motion costs within five days.

Present: Gildersleeve, Bischoff and Guy, JJ.

Order denying motion for adjournment affirmed; order denying motion to open judgment of dismissal reversed, and motion granted upon payment of costs before notice of trial and ten dollars motion costs within five days.  