
    McDonald et al., Appellants, v. Heineman et al., Respondents.
    
      (Supreme Court, General Term, First Department.
    
    June 6, 1890.)
    Appeal from circuit court, New York county.
    Action by Robert McDonald and others against Simon D. Heineman and others. Plaintiffs moved to vacate a default entered on their failure to prosecute when the case was called. The motion was denied, and plaintiffs appeal.
    Argued before Van Brdnt, P. J., and Brady and Daniels, JJ.
    
      Blumenstiel <6 Hirsh, for appellants. Benno Loeioy, for respondents.
   Brady, J.

The plaintiffs, having answered “Ready” on the call of this action for trial several times, when it was finally reached, moved for leave to discontinue without costs, but did not present any affidavits bearing upon that motion before the case was again called and judgment entered by default. The plaintiffs, with an apparent design of procuring a vacation of the default, procured a stay, which the respondents’ counsel says was obtained to enable the appellants’ counsel to go on a fishing excursion, a source of pleasure which, while it is an innocent and exciting pastime, and should be encouraged for its gratifying results, though not always truthfully told, should not be made to depend upon the exercise of judicial power. Some more serious objection, though not of greater depth, should have been presented. It was apparent, however, that the attempt to open the default was fanciful, not real. The proposition to try a cause to save the payment of costs, except in cases of the absolute insolvency of the adverse party, is too novel to be impressive, and the learned justice presiding at the trial term no doubt so regarded it, and perhaps, as well, that thel-e was an under-current of professional pique prompting the effort, and which, no doubt, resulted in this appeal. There is really nothing to sustain it, and therefore nothing to consider here now. The default was regular, and the subsequent proceedings by the plaintiffs destitute of merit, in any sense. The cause of action was a failure from the time of the demurrer; so felt by the plaintiffs’ counsel, and, substantially, so conceded on this appeal. The learned counsel for the appellants know this thoroughly. The appeal must therefore fail, and the order and judgment appealed from be affirmed; but as the appeal was presented as one from a motion, and is so treated, costs of such a proceeding only will be allowed, namely, $10 costs and the disbursements of the appeal. Ordered accordingly. All concur.  