
    Gregor Faist, Respondent, v. Metropolitan Street Railway Company, Appellant.
    
      Default—opening of—failure of a non-resident witness, who has promised to attend the trial, to appear.
    
    A judgment for $10,000 against the defendant in an action brought in the first judicial district, to recover damages for personal injuries, rendered by default because of the defendant’s failure to proceed with the trial of the action when it was reached upon the day calendar, should be vacated, where it appears that the default was due to the fact that one of the defendant’s non-resident witnesses,. who had promised to appear upon the trial and was seasonably notified to do so, failed to respond immediately to the summons.
    
      In such a case the defendant brings itself within the spirit, if not the letter, of rule 7 of the special rules for the regulation of Trial' Terms in the first judicial district, requiring that a case shall be tried when reached upon the day calendar, ‘'unless it appears * * * that in consequence of the happening of an event since the cause was set down for trial, the trial cannot with justice to one of the parties proceed.”
    Appeal by the defendant, the Metropolitan Street Railway Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 23d day of November, 1903, denying the defendant’s motion to open its default and to restore the case to the trial calendar.
    
      Charles F. Brown, for the appellant.
    
      Herman, M. Schaap, for respondent.
   Per Curiam :

The imposition of what in effect is a fine of $10,000 is a severe penalty for failure to proceed with the trial of the case when reached, and can only be sustained if the defendant was without excuse.

The defendant relied upon the promise of a material witness to. attend at the trial, and such witness being without the jurisdiction of the court, his attendance could not be enforced by subpoena. That every effort was seasonably made to bring him from St. Louis agreeably to his promise was made to appear; as was the fact that on the day that the default was taken the witness was on his way to attend the trial. Rule 7 of the Special Rules for the Regulation of Trial Terms in the first judicial district requires that a case When it appears upon the day calendar shall be tried ‘‘ unless it appears * * * that in consequence of the happening of an event since the cause was set down for trial, the trial cannot with justice to one of the parties proceed.”

Although the 'defendant did not bring itself strictly within the letter, it did within the spirit of the rule by furnishing proof that the absent witness when seasonably notified did not according to promise immediately respond; and to obtain his presence a short adjournment was asked, to which the plaintiff was willing to assent. UpOn these facts we think it would.be a harsh enforcement of the rule to mulct the defendant in the sum of $10,000.

The order is accordingly reversed upon condition that the defendant pay the taxable costs, including a trial fee and the disbursements of the trial, and that the case be put back on the call calendar and set down for trial at such time as the justice holding that term shall direct.

No costs on this appeal.

Present—Van Brunt, P. J., O’Brien, Ingraham, McLaughlin and Hatch, JJ.

Order reversed upon condition that defendant pay the taxable costs, including a trial fee and disbursements of the trial, and that the case be put on the call calendar and set down for trial at such time as the justice holding that term shall direct. No costs on this appeal.  