
    MILLER v. MAYER.
    (Supreme Court, Appellate Term, First Department.
    January 7, 1915.)
    Continuance (§ 20) — Grounds — Engagement or Counsel in Another Court.
    Where, when defendant’s case was called for trial, an affidavit was presented to the trial judge that defendant’s attorney was then engaged in the trial of a case in the Court of General Sessions, defendant was entitled to an adjournment to await the release of his counsel, and a default entered notwithstanding such affidavit was without justification.
    [Ed. Note. — For other cases, see Continuance, Cent. Dig. §§ 51, 53-57; Dec. Dig. § 20.*]
    Appeal from Municipal Court, Borough of Manhattan, Ninth District.
    Action by Marcus A. Miller against Sam Mayer. From a Municipal Court order denying a motion to open defendant’s default, except on payment of $10 costs and the deposit in court of the amount sued for, he appeals.
    Modified.
    Argued December term, 1914, before GUY, BIJUR, and PAGE, JJ.
    Isidor Cohn, of New York City, for appellant.
    Lorence & Harkavy, of New York City (Louis Lorence and Ira Wollison, both of New York City, of counsel), for respondent.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   BIJUR, J.

It appears from the record, and is not denied by plaintiff, that when this case was called for trial an affidavit was presented to the trial judge showing that defendant’s attorney was then engaged in the trial of a case in the Court of General Sessions. As defendant was thereupon entitled to an adjournment of his case to await the release of his counsel from that engagement, the default was taken without justification.

Order opening default modified, so as to provide that the motion is granted without terms, and without costs of motion, and, as modified, affirmed. Judgment vacated, and new trial ordered, with costs to appellant to abide the event. All concur.  