
    AUDIT CO. OF NEW YORK v. McNAUGHT et al.
    (Supreme Court, Appellate Term.
    March 24, 1904.)
    1. Judgments—Defaults—Opening.
    A case had been peremptorily set for trial at plaintiff’s instance, and, when reached, plaintiff was not ready to proceed. Thereupon the court dismissed the action, and rendered judgment for costs against plaintiff, who subsequently procured' an order on defendant to show cause why the default should not be opened. At the hearing of the motion, plaintiff’s attorney was asked when he would be able to try the case, and was unable to answer. Reid, that the court properly-refused to open the default
    Appeal from Municipal Court, Borough of Manhattan, First District.
    Action by the Audit Company of New York against James McNaught and others. From a judgment for defendants, and from an order denying a motion to open a default, plaintiff appeals. Judgment affirmed.
    • Argued before FREEDMAN, P. J., and SCOTT and BRANCH-ARD, JJ.
    Albert Chas. Asche, for appellant
    E. J. Heilner, for respondents.
   BLANCHARD, J.

This case had been set peremptorily for trial at the instance of the plaintiff, and when it was reached the plaintiff was not ready to proceed. The court thereupon dismissed it, and a judgment for the costs was rendered against the plaintiff. Later the court granted an order directing the defendant to show cause why the default should not be opened, and plaintiff allowed to proceed. When the motion came on to be heard, the court asked the attorney for the plaintiff when he would be able to try the case, and, as he was unable to answer, the court denied the motion.

The order denying the motion to open the default was proper, under the circumstances of the case, and the appeal from the order is dismissed, and the judgment affirmed, with costs. All concur.  