
    Arthur Robertson, Appellant, v. The Merz Universal Extractor and Construction Company, Respondent.
    
      Hules of the court as to the trial of cases—evasion of, by suffering a default and moving to open it and set the■ case down for a day certain—cases not ready for trial when called must go to the foot of the calendan'.
    
    Upon an appeal by the plaintiff from an order opening a default and inquest and setting the.case down for trial at an early day specified therein, it appeared that the case was called January 2, 1896, and was set down for trial on Friday, January 10, 1896, on which day it was reached and called. The managing clerk of the defendant’s attorney then showed by his affidavit that the attorney was obliged to go to Chicago on January 7, 1896, and could not reach New York before the following Sunday or Monday and applied for a postponement. The court refused to postpone the trial, and by consent of the managing clerk of the defendant an inquest was taken without any evidence having been given, and a motion was then made to set it aside, upon the hearing ■of which, although it appeared that neither attorney expected to try the case on ■January tenth, supposing that it would not be reached before January thirteetith, and that the defendant consented to a verdict in order to prevent the ' case from going to the foot of the calendar; the court, on February 5, 1896, • set aside the inquest and set the case down for trial on February 17, 1896.
    
      HdA, that the order was improper;
    That the court would not permit its rules to be thus evaded;
    That the case should be sent to the foot of the calendar.
    Appeal by the plaintiff, Arthur Robertson, from an order of the Supreme Court, made at the New York Special Term, opening the default and inquest taken in the above-entitled action at a' trial term-of the court, and setting the case down for trial at a future day.
    The case was called January 2, 1896, and by consent of counsel was set down for trial January 10, 1896, which was Friday. The case was reached January 10, 1896, and called for trial An application was made by the managing clerk of the defendant’s attorney to postpone the trial and set the case down for some day the following week or place it on the next' clerk’s calendar. He produced his affidavit, showing that defendant’s attorney had been obliged to go to Chicago January T, 1896, to engage in the trial of a case in the United States court and that he was actually engaged in such trial and would not reach the city of New York earlier than the following Sunday night or Monday morning. The plaintiff’s counsel was willing that the case be postponed until the following week if it could then be tried and prevented from going to the foot of the calendar. The court refused to make such disposition of the case, holding that the application for the postponement was insufficient-under the rules. The trial was then proceeded with. -A jury was impaneled, and thereupon the managing clerk of the defendant’s attorney consented that the court might order a verdict without any evidence being given by the plaintiff, and the verdict was so ordered.
    A motion was promptly made to set aside the inquest, restore the ' case to the calendar and set it down for trial. Upon this motion it appeared that the defendant’s attorney on the day before the cause was originally called and set down for trial, Friday, January 10, 1896, instructed his managing clerk to keep the whole week commencing January 10, 1896, clear of court engagements as such attorney must be absent from New York city and in Chicago during that week in the trial of a cause in the United States court; that ■ when the case was called, however, such managing clerk consented to the cause being set down for Friday, January 10, 1896, upon the understanding and assurance (but not of the court) that the case ■ could not possibly be reached on that day, but it would then take its place early in the following week, and would be likely to be tried on Monday, January 13, 1896. Raving made this disposition of the cause he at once informed defendant’s attorney what he had done, and the attorney expressed at the time his fear that .through the stringency of the new rules the case might come up on Friday and it might be difficult or impossible to have it held until the following Monday. The managing.clerk, however, expressed the opinion that setting the case down for Friday would result in its not coming to trial until the following Monday. The attorney, therefore, left for Chicago and was away when the case came on for trial on Friday, January 10, 1896. Rpon this motion it also appeared that it was not the intention of the parties that the consent of defendant to .a verdict being ordered for plaintiff should in any way interfere with defendant’s motion to be thereafter made to set aside the inquest and have the case set down for trial at a future day. The managing clerk so testified and plaintiff’s attorney did not deny it.
    The court made an order February 5, 1896, setting aside the inquest upon the payment of ten dollars costs, and setting the cause down for trial February 17, 1896, and from this order plaintiff appeals.
    
      B. F, Fwistem, for the appellant.
    
      ..Frank J. Dujyignac> for the respondent.
   Williams, J.:

It is very apparent to us that the counsel in this case undertook to evade the rules of the court. It is not disputed that when they agreed to set the cause down for trial on Friday, January 10, 1896, they had no intention of trying the case on that day. The defend- • ant’s counsel intended then to do just what he did do, go to Chicago and remain there until Friday had passed: Plaintiff’s counsel, apparently, did not intend to try the case on that day either, but asked consent from defendant’s counsel to a direction of a verdict, so as to prevent the case from going to the foot of the calendar. The counsel deliberately and. voluntarily put themselves in this positian, and then arranged to save the. cause from going to the foot of the calendar under the rules. And to effect their purpose consent was given that a verdict be ordered, with the understanding that a motion should thereupon be made to set aside the inquest and have the cause set down for trial at an early day. ' The Special Term fell into the error of allowing this arrangement to succeed. This court cannot permit its rules to be so trifled with and evaded. The Special Term might very properly, under the circumstances, set aside the inquest and permit a trial of the case on the merits, but considering the action of counsel, the Special Term should not have set the case down for trial at an early day.

The order should be modified by striking out the direction that the case.be set down for trial February 17, 1.896, and inserting a provision that it be ordered to the foot of the calendar, and the order as so. amended should be affirmed, without costs..

Yan Brunt, . P, J., Barrett, Rumsey and Patterson, JJ., concurred. ,

Order- modified as directed in opinion and affirmed as modified, without costs.  