
    Muller v. Rost.
    
      (Supreme Court, General Term, First Department.
    
    October 24, 1890.)
    Judgment by Default—Setting Aside—Conditions.
    On motion, to open a default taken against defendant in the absence of Ms attorney, who was engaged in the trial of another cause in a different court, it appeared that, after a postponement of the trial had been obtained on a previous day on the ground of illness of said attorney, he had, on the same day and the next day, proceeded with the trial of another case, and on the following day, that on which the default was taken, he had engaged in the trial pending at the time of the default. Held, that it was proper to require, as conditions on opening the default, payment of costs of the motion, trial fee, term fee, and disbursements of the term, and a stipulation that the cause be restored to the calendar, and tried when reached without asMng a postponement for any reason.
    Appeal from special term, Yew York county.
    Action by Clemens Miller against Carles F. Rost. When the cause was called for trial, it was postponed on the ground of illness of defendant’s attorney. It appeared that, at a later hour on the same day, he appeared and- answered in another cause ready for trial in the city court of Yew York, and proceeded with the trial of that case on the next day; and on the following day, engaged in the trial of still another cause in the city court, which opened atan earlier hour than this court, and was still engaged in that trial when this cause was called, and his default was taken. The court permitted the default to be opened on condition that defendant forthwith pay $10 costs of „ the motion, and all costs of the action w-hich had accrued up to the time of making the application, and on the further condition that defendant stipulate that the case be restored to the calendar, and tried when reached without asking for a postponement for any reason. From so much of the order as imposed conditions defendant appeals.
    Argued before Van Brunt, P. J., and Brady and Daniels, JJ.
    
      A. H. Berrick, (J. C. Julius Langbein, of counsel,) for appellant. Hugo R. Miller, for respondent.
   Van Brunt, P. J.

There are circumstances disclosed by the papers herein which might very well lead the court to impose heavy conditions to the granting of a favor, but we think that perhaps the terms were rather severe. We think that the plaintiff was entitled to costs of motion, trial fee, term fee, and disbursements of the term, and to the stipulation ordered. The order appealed from should be modified to this extent, and, as modified, affirmed without costs. All concur.  