
    The Herbert Land Company, Appellant, v. Frederick Lorenzen, Respondent.
    Second Department,
    June 15, 1906.
    Practice — trial calendar practice in Westchester county — opening of defaults in cases marked ready.
    The calendar practice at Trial Terms in the counties of Westchester, Kings ,and , Queens stated. . .
    Judgment by default in .cases marked ready by both sides should not he vacated except on terms. Defaults, when willful should he opened only when necessary, to protect litigants from the misconduct of their counsel.
    
      The practice oí opening defaults on motion before another judge where the trial judge has heard and denied amotion for postponement made on affidavits as required by the rules should be discontinued. An appeal to the Appellate Division should be taken from an order of the trial judge denying postponement.
    Appeal by the plaintiff, The Herbert Land Company, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the_ 6th day of January,, 1906, opening a default and vacating a judgment entered thereon.
    
      James C. Bushby, for the appellant.
   Gaynor, J.:

The established calendar ■ rules, printed on the calendars, of •the Trial Terms in Westchester county, the same as in Kings and Queens, are as follows :

The day calendar is made up of two sections, .one of causes ready for trial, and called the ready section, and the other of causes which appear on the day calendar for the first time, and which are not to be tried that day, but are.called at the opening of court to see if they are ready, and called the reserve section. Ho cause is tried until it gets on the ready section. All causes on the reserve section which are marked ready on the call are passed for the day. The causes marked ready on the reserve section are moved up to the ready section in their order the next day, or as soon thereafter as the ready section can receive them, according to the progress of work on that section, there being a fixed number of causes actually ready for trial put on the ready section day by day. This insures to every one a day or more to complete preparations for trial, after the cause first appears on the day calendar. Allexcuses or motions for postponement have to be made while the canse is on the reserve section. That is what the reserve section is for, and to take inquests and dismissals, and note settlements, and so on, and get rid of all dead wood. Ho excuse is heard except on affidavits, except that engagements of counsel may be handed up in writing without being sworn to. When a cause is moved up in its turn to the ready section no excuse is heard for delay of it except some special one which has arisen since it was marked ready on the reserve section. In this way • there is on every day calendar a list-of causes actually ready for trial that day, so that, the ctiurt Canitot be without work,‘and compelled to adjourn -for' lack of. Workand" also ,a list of causes, not to be tried that■ day, but which are called at .the.,,opening of the court' for the purpose of ascertaining those ready to be •tried, and which will - be-.moved up¿. toTlie' -ready' -section for next -day, ohhs-soon :as may;'be-'in the--progress of work, op’ tlie; .ready section.

This, cause appeared: on the resérve ¿section on December "sixth, and was answered readyby both sides on ¿the-morning call: • ’Next day it was still on the reserve section and was again answered ready by both sides on the mo'rnmg call: Next day, the eighth, it was" on the ready section and was again answered ready by both sides:- It was reached-:-for trial in- -the afternoon:,- "and- the defend-" ant’s attorney remained outside and-alldwedan inquest to be-taken. It now appears from the affidavits that he had -never‘got-¿-ready at all, and -that Ms answer of ready three days- running wás¿ an imposition ©n-the-hour t and -on--the -other side-for- which a.n. attorney might. well- ¡expect- -to. be' called To¿ acepiin tJ - - - Ifcis swell-attorneys -who break -up the calendars -daily in- on® ¿total courts;- if. they aré- permitted t.o,- and cause the courts to adjourn for lack- of-- work: As- -no oiie has appeared or submitted a brief for-.the respondent - on this, appeal, it.is quite -apparent, he,or .his attorney attaches-n©> importance -to the .order opening -the "default, -and lias,."-scant respect- therefor: They have, probably already accomplished' the- object-¡they had in view in •moving to open it. ■ A-A. • .,, ¡, .,

: i The - said - attorney - swears -in ¡the ¡affidavit .-upon-' which lie -moved to : open , the judgment,- or *. default/ as- he calls-- it, That-the 'Cause having been noticed- for trial in- -February, -1904, “ nothing further was heard from- it -until the: 8th -day-of December; ¡lt90’5 (the inque’st day),, when it -suddenly .atid •unexpectedly to- deponent -appeared-upon the -day -calendar.’-’ This. -was wholly - -untrue; as already appears from the foregoing • statement. .Moreover, ..it was his business to keep, watch and - know - when the; cause -Was about ■ to: come on the day-calendar-inits-regular orden ■- :- >-i -~t -,- = •■ * •• ¡-¡...n,

"The learned judge before whom the motion was; made opened the default without imposing any terms.: The practice - of opening ■ defaults as- á matter of course should not; be continued. - Such practice has lowered respect for and injured the administration of justice, and is also a wrong to diligent attorneys and litigants who conform to the rules of. court,, and are, entitled to the protection and favor of the court against the opposite kind of attorneys and litigants. The same is true of the opening of defaults without terms, or adequate terms. ¡Nor should willful defaults be easily excused or opened, but only for the protection of litigants from the misconduct of their attorneys, and then only on such terms as pro-' tect and reimburse the other side. They are not defaults but abandonments (Sutter v. City of New York, 106 App. Div. 129). The. practice of opening so-cálled defaults on motion before another judge where the trial judge has'heard the motion for postponement on affidavits, as the rules require, should also be discontinued. They are not defaults, and such motions are -an appeal from one judge to another. The appeal should be to this court from the order of the trial judge denying the motion to postpone.

■ The order appealed from should.be modified by opening the judgment on the defendant paying all costs and disbursements of the plaintiff after notice of trial, and $25 counsel fee for the counsel who was present on December 8th to try the cause; and giving am undertaking of two- sureties or of a surety company in the sum of $1,500 for the payment of any judgment that may be recovered against him-; all within, .five days- after sér-vice of the order herein; and in default thereof that the- order be reversed, with costs and disbursements, and-the motion denied, with costs.-

Jenks, J., concurred; Woodward and Rich, JJ., concurred in' result.

Order modified in accordance with the opinion of Gaynor, J., and as modified affirmed, with ten dollars costs and disbursements to the appellant.  