
    Isaac Witowski, Respondent, v. Adolph Maisner, Appellant.
    (Supreme Court, Appellate Term,
    October, 1897.)
    1. Services — Breach — Evidence in avoidance — Adjournment.
    Where the contention of the plaintiff is that his assignor placed jewelry in the hands of a dentist as security for the payment to him of $150 for dental services to be rendered and that the dentist subsequently réfused to perform any unless he was also paid $75 in cash, the testimony of a witness for the defendant that the assignor had admitted to him that the defendant had done nothing to her • teeth against her will and that she gave the jewelry voluntarily, is-immaterial, and the absence of the witness is not a sufficient ground for an adjournment.
    2. Practice — Reviewing terms of an order opening a default.
    -■ Where the defendant’s default is opened, by an order, upon terms by which he considers himself aggrieved, he must, in order to procure a review of the terms, appeal from the order, as his appeal from the judgment, after having failed to comply with the terms, is ineffectual for such a review.
    Appeal by defendant from judgment of the Second District Court.. '
    Joseph Rosenzweig, for appellant.
    M. B. Blumenthal, for respondent.
   McAdam, J.

The action was for the conversion of certain jewelry left with the defendant, a dentist, as security for the payment of $150, which he said he would charge to- supply artificial teeth to the plaintiff’s assignor, May Woodruff. She testified that she had given the defendant the jewelry on that understanding, and that he had thereafter refused to perform his agreement unless she paid at least $75 of the amount in cash, which she declined to do ; whereupon she demanded the return of her property, and, the defendant refusing to give it up-, assigned her claim to the plaintiff, who brought the present action.

- After issue joined the cause was adjourned for trial to June 10, 1897. On that day the parties appeared before the justice, and the defendant moved-for an adjournment on the ground of the absence of one Herlihy. . In order to show the materiality of the latter’s testimony the defendant presented an affidavit made by Clifton Hurley, in which the affiant stated that Hérlihy would testify that the plaintiff’s assignor had admitted to Herlihy that the - defendant, had done nothing- to her teeth, against her will, and that she had voluntarily given her jewelry to the defendant. Herlihy. wap a police officer, and had been regularly subpoenaed to attend the trial, but was detained as a witness in a criminal cause pending, in Special Sessions. .. . .

- If the testimony proposed was material to the defense the justice should either have waited until Herlihy appeared after having finished his duty as a witness in Special Sessions, or adjourned the trial to a future day. But we do not regard the evidence proposed as of any materiality whatever. The contention of the plaintiff and his assignor was that she had placed the jewelry in the hands of the defendant under an agreement, which necessarily implies a volun-' tary .action on her part; so that the defendant’s original possession qf the property was unlawful. They further contended that the defendant had refused to perform his contract, unless. in addition • to depositing the security she made a payment of $15 in cash; that she was unable to comply with this request, and thereupon demanded the return of the property.' There was no pretense that Herlihy knew anything concerning these facts. Hence his evidence was immaterial, not being relevant to.the.issue. The. refusal ' to adjourn, therefore, did not prejudice the defendant, and he should have proceeded with the trial.

If the justice had improperly denied the defendant’s motion and the. defendant had participated.in the trial, and it had then been made to appear that Herlihy’s evidence would have "been material-in any phase of the case, .the point now urged , as to the relevancy and materiality of his evidence would come with force.

The plaintiff proved the cause of action, and the justice awarded judgment for $90, the value of the property converted.

The defendant .thereafter moved to' open the default, and the justice made an order granting the motion on terms, with which the defendant refused to comply. Some criticism has been made as to the terms imposed; but as there is no appeal from the order, it is not before us for review.

■ If the defendant considered himself aggrieved by the judgment, he should either, have complied with the order, opening the default" or appealed from it (Laws 1896, chap. 748), that we might review the question whether the terms imposed were authorized. The defendant did not avail himself of either course, hut appealed from the judgment. As there was no error in declining to grant the adjournment, and the plaintiff’s case was properly made out, the justice was authorized to find, as he did, in favor of the plaintiff.

Judgment affirmed, with costs.

Daly, P. J., and Bischoff, J., concur.

Judgment affirmed, with costs.  