
    Charles Sutter, Appellant, v. The City of New York, Respondent.
    
      Yacation of a judgment, taken where the defendant’s counsel refused, after moving for a postponement, to proceed — when an application therefor should he denied.
    
    Nine similar cases against the city of New York came on for trial at the Special Term, both sides having announced themselves ready. At the conclusion of the evidence in the first case, the justice presiding announced that he would decide in favor of the plaintiff and reserve the question of damages for further consideration. The counsel for the defendant thereupon moved for a postponement of the other eight cases, on the ground that the ruling of the court operated to deny the defendant its day in court, and that its interests would be preju-.iced by a trial of the remaining eight causes before the justice. This motion being denied, the defendant’s counsel refused to proceed and permitted inquests to be taken in each of the remaining eight cases.
    
      Held, that it was improper for the court to vacate the judgments rendered in the actions in which inquests were taken;
    That the reason given for refusing to proceed with the trial of the cases did not, under the circumstances, commend itself to the court;
    That the defendant had not been denied its day in court.
    Appeal by the plaintiff, Charles Sutter, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Queens on the 19th day of April, 1905, vacating a judgment theretofore entered in the action in favor of the plaintiff and restoring the case to the calendar for trial.
    
      Charles Coleman Miller, for the appellant.
    
      James D. Bell [R. B. Greenwood and John J. Delany with him on the brief], for the respondent.
   Miller, J.:

Nine so-called “ water cases,” including the case at bar, were placed on the day calendar for trial at Special Term, and when called were announced to be “ready” by both sides, pursuant to an arrangement between the attorneys to try all the cases before the same justice. At the conclusion of the evidence in the first case the justice presiding announced that upon the authority of a case recently decided by this court he would decide in favor of the plaintiff and reserve the question of damages for further consideration ; whereupon counsel for the defendant moved for a postponement of the other eight cases on the ground that the ruling of the court denied his client its day in court and that its interests would be prejudiced by a trial of said causes before said justice. Upon a denial of this motion, though concededly prepared for trial, he refused to proceed and permitted inquests to be taken in each case. The plaintiff now appeals from an order granted at Special Term vacating the judgment so rendered, and it is stipulated that the appeals from similar orders in the other seven ca,ses shall abide the event of this. ■ ,

Said counsel appeared for the defendant on the motion resulting in the order appealed from, and by affidavit sought .to justify his conduct, and the brief submitted by the defendant on this appeal is an attempted justification instead of an apology. It is to be noted that these judgments were not taken by default, in which case the -courts Strive to relieve a-party from the consequences of his attor- . ney’s neglect. But where a party is actually represented by counsel in court, fully prepar'ed to try the cause, 'and such counsel refuses to proceed-for the sole reason that he thinks, the justice presiding may decide against him, the judgment thus rendered cannot be vacated as though taken by default, and no reason can be suggested for disturbing it which could not be urged with equal force to vacate a judgment alleged to have resulted from the incompetence of the attorney conducting the trial. It was urged upon the oral argument that the rights of the defendant should not be prejudiced by the. conduct of its counsel. The defendant has not been denied its day in Court; through its counsel it chose not to avail itself of the right to be heard for reasons which do not commend themselves to us; and as no other ground was presented for vacating the judgment, the order should tie reversed, with ten dollars costs and disbursements.

Hieschbeeg, P. J., -Bartlett, Jenks and Rich, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and judgment reinstated. 
      
       See Dinger v. City of New York (101 App. Div. 303).— [Rep.
     