
    Ella C. McIver, Respondent, v. The Greenpoint Moulding Company, Appellant.
    (Supreme Court, Appellate Term, First Department,
    February, 1914.)
    Trial — stipulation for adjournment — inquest, when taken — motion to open default — absence of witness.
    Before signing a stipulation prepared and sent to defendant’s attorney by plaintiff’s attorney, “ The trial of the above entitled cause having been adjourned to October 15th, it is hereby consented that the trial be further adjourned to October 22d, 1913, to give time for the return of the commission herein,” defendant’s attorney inserted, “ It may be necessary for the defendant to ask for an adjournment on that date, because of the possible absence of a material witness,” and plaintiff’s attorney accepted such addition to the stipulation. On October twenty-second defendant asked for a month’s adjournment on the ground that a material witness was out of the state and would not return for some weeks, and thereupon the ease was adjourned until November fifth, and the ease set down peremptorily for trial on that date, at which time defendant stated to the court that said witness was still absent and his request for a further adjournment was refused. An inquest having been taken, defendant moved to open its default on condition that the judgment should be allowed to stand as security, but the motion was denied. Held, that the order denying said motion should be reversed.
    That the trial should not have proceeded on the adjourned day in the continued absence of said witness when such absence was due not to any negligence of defendant or desire to postpone the trial but to the fact of the witness leaving the city in reliance on circumstances which apparently made it safe for him to do so.
    Appeal by the defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, seventh district, rendered in favor of the plaintiff after an inquest and also from an order denying the motion of the defendant to open its default.
    Goldman, Heidenheimer & Unger (William F. Unger, of counsel), for appellant.
    Robert Gibson, Jr., for respondent.
   Lehman, J.

The plaintiff brought suit for the agreed price of lumber sold to the defendant. The defendant claims that the lumber was warranted by the plaintiff’s assignor; that the lumber was never accepted, but was offered back to the plaintiff’s assignor because of a breach of warranty, and that plaintiff’s assignor agreed to accept the return.

After issue was joined, the plaintiff caused a commission to issue to take testimony of a witness out of the state. On October fifteenth the' commission had not been returned, "and the case was therefore adjourned by stipulation of the parties to October twenty-second. On October twenty-second the defendant asked for a month’s adjournment, on the ground that a material witness was out of the state, and would not return for some weeks. The case was thereupon adjourned till November fifth, and the trial justice set the case down “ peremptorily ” against the .defendant for that date. On November fifth the defendant stated to the court that this witness was still absent, and asked for a further adjournment, which was refused. An inquest was then taken by the plaintiff. Thereafter the defendant moved to open its default on condition that the judgment should be allowed to stand as security, but the motion was denied, and the defendant appeals from the judgment and the order denying his motion to open the default.

It appears that before the case was adjourned from October fifteenth to October twenty-second, the plaintiff’s attorney prepared and sent to the defendant the following stipulation for his signature: “ The trial of the above entitled cause having been adjourned to October 15th, it is hereby consented that the trial be further adjourned to October 22nd, 1913, to give time for the return of the commission herein. ’ ’

Before the defendant’s attorney signed this stipulation, he inserted the words: “ It may be necessary for the defendant to ask for an adjournment on that date, because of the possible absence of a material witness.” The plaintiff’s attorney accepted this addition to the stipulation.

The defendant’s attorney now claims that he told the plaintiff’s attorney at that time that his superintendent, a material witness, might have to leave the city for a southern trip before the twenty-second for a four weeks’ trip, and that in that case he would be obliged to ask for an adjournment for that time. It is his contention that the stipulation was intended to provide for such an adjournment. On the other hand the plaintiff’s attorney claims that he understood the stipulation to mean only that the defendant, in granting one adjournment, desired to maintain his right to move for a further adjournment if the occasion arose. Certainly the written stipulation can mean no more than that the defendant was to be entitled to a reasonable adjournment on October twenty-second, and when an adjournment of two weeks was granted by the court on that date, its effect was terminated, and there was no stipulation in existence which bound the plaintiff’s attorney not to oppose a further adjournment. However, even if there was no stipulation for an adjournment for four weeks from October twenty-second, it does not follow that the defendant’s motion to open the default should have been denied. Even if the defendant was at fault in failing to be ready on November fifth, his default should be opened, if he presents an excuse for his default, which any reasonable man should accept.

In this case I think that the defendant’s attorney, even on the plaintiff’s version of the transaction, presents such an excuse. The plaintiff’s attorney admits in his affidavit that “ Mr. Unger stated on October 7th that one of his witnesses might go away on a trip in the early part of November, whereupon deponent stated that he would hasten the return of the commission which deponent did by strenuous methods.” At that time, it would therefore appear that the defendant was desirous of "hastening the return of the commission so that the trial might come off before his witness was obliged to leave on his business trip. On October fifteenth, the commission had not been returned, and while doubtless the defendant could not then have opposed an adjournment of the trial until a reasonable time had been given for the return of the commission, he could have appeared in court and asked the court to adjourn the matter to a date which would not interfere with the proposed business trip of his witness, and the trial justice would then have been obliged to make a disposition of the motion for an adjournment that would have advised the defendant whether it could safely allow the witness to leave the city. Instead of so doing, the defendant caused the insertion in the stipulation for an adjournment of ‘1 It may be necessary for the defendant to ask for an adjournment on that date because of the possible absence of a material witness.”

It seems to me that when the plaintiff’s attorney accepted the stipulation without inquiry as to the proposed trip, after he had been told that one of the defendant’s witnesses “ might go away on a trip early in November,” he lulled the defendant into the belief that he could safely permit the witness to go on a trip at that time. Certainly' if the defendant had stated on October fifteenth to the trial justice that a witness contemplated a trip to the south before October twenty-second, and the trial justice had stated that he would adjourn the case till October twenty-second, and would then grant a further adjournment, to allow the return of the witness from his trip before trial—• there could be no question that the defendant would have been entitled to demand on October twenty-second a further reasonable adjournment. The stipulation in my opinion had exactly the same effect. The trial justice apparently recognized the stipulation to the extent that he granted a two weeks’ adjournment, which he apparently considered a reasonable time for the return of the witness. He should not, however, have marked the case peremptorily against the defendant, thereby stating in effect that the return of the absent witness was to be obtained at defendant’s peril.

The defendant could surely not be required to do more than make reasonable efforts to secure the return of his witness, and, if on the adjourned day he had failed to secure the return of the witness, he should not have been forced to trial.

In other words, since the defendant on October twenty-second was in a position of not being able to properly try its case because of the absence of a witness, and was entitled to an adjournment sufficient to secure the presence of the witness at the trial, the trial should not have proceeded on the adjourned date in the continued absence of the witness, when that continued absence was due not to any negligence of the defendant, or desire to postpone a trial, but to the original act of leaving the city in reliance upon circumstances which apparently made it safe for him to do so.

The order should therefore be reversed, motion granted and new trial ordered, with costs to appellant to abide the event. Trial set for the 27th day of February, 1914, and the appeal from the judgment dismissed.

Page and Bijub, JJ., concur.

Order reversed, and new trial ordered, with costs to appellant to abide event.  