
    Apollonia Warth, Respondent, v. The Moore Blind Stitcher and Overseamer Company, Appellant.
    Second Department,
    March 11, 1908.
    Practice — opening judgment by default — requisites of moving affidavits — absence of witnesses — second motion before other judge not authorized.
    The opening of a judgment taken by default is in the discretion of the court, and the moving party must show that the judgment was taken through his mistake, inadvertence, surprise or excusable neglect, as required by section 724 of the Code of Civil Procedure.
    An intentional default at trial will not be opened unless it was suffered through betrayal, negligence or incompetence of the party’s attorney, and the motion be based upon that, ground.
    After a cause has been marked ready on the general .calendar in the second department, and in due order has been placed up'ón the day calendar without opposition, it is irregular for the court to consider affidavits on a motion to postpone. Such affidavit should be submitted on the general call on the first day of the term if the excuse then existed, or if not, then on the first day the cause was put on the day calendar.
    An affidavit on a motion to postpone a case on the day calendar on the ground of the absence of a witness is insufficient if it fail to show that he was a material and necessary witness, or that he knew any fact to 'be proved, or that there was anything to which he would testify.
    That such witness is material and necessary cannot be alleged as a mere conclusion; facts must be stated which enable the court to draw that conclusion.
    On such motion it is no excuse that the sole and only witness for the defendant who was personally. familiar with the facts was impaneled as a juror in "another county at a time when he knew that the cause in which he was interested was on the day calendar, for under the circumstances he would have been excused from the jury service.
    Three things are necessary in order to put off a trial: 1.. That an absent witness is really material and appears to the court to be so. 2. That the party who applies has been guilty of no neglect. 3. That the witness can be had at the time to which the trial is deferred.
    Where a motion to postpone a trial lias been denied, the remedy is an appeal from the order of the trial judge. A party, having suffered a default after the denial of such motion, cannot apply to another judge to open the default.
    Appeal by the defendant, The Moore Blind Stitcher and. Overseamer Company, 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 Richmond on the 23d day of November, 1907, denying the defendant’s motion to open a default.
    
      William G. Rosenberg, for the appellant.
    
      Augustus J. Koehler, for the respondent.
   Gaynor, J.:

Section 724 of the Code of Civil Procedure does not .by any means .permit or sanction the indiscriminate opening of defaults. It only provides that the court may in its discretion relieve a party from a judgment, order, or other proceeding, taken against him “through his mistake, inadvertence, surprise, or excusable neglect”. If his default be not of this character a motion to open it should be denied. This applies in a special degree to defaults taken at the trial term. The diligent party who gets ready to try his cause has rights and is entitled to the court’s favor and protection, instead of being worn out by delays. An intentional default is not to be opened, unless it was suffered through the betrayal, negligence or incompetence of the party’s attorney, and the motion to open it is made upon that ground, in which case the conduct of the attorney will not always be taken as that of the client, as is ordinarily done (Gideon v. Dwyer, 17 Misc. Rep. 233).

This cause was on the Richmond trial term calendar for October, 1907. The calendar practice is established in this judicial department by a system of rules printed on every general calendar. In Richmond this general calendar is called through on the first day of the term for the purposes of inquests and motions to postpone, and to discover the causes to.-be tried. On such call this defendant and the plaintiff answered ready, and the court marked the cause ready, which meant that it would' come upon the day calendar for trial when reached in numerical order. It came upon the day calendar on .October 28th. The said printed rules require that all applications for postponement shall be heard upon affidavits, and that they shall be disregarded unless presented by affidavits, except engagements of counsel, which may be handed u.p in writing, specifying the engagement with particularity, and signed by the attorney or counsel without being sworn to. No affidavit or writing was presented on October 28th by the defendant, and the cause was marked i-eady, as it had to be under the rules. The plaintiff was ready, having brought witnesses from a long distance at considerable expense. The next day an affidavit by the defendant’s attorney was submitted on a motion by him to postpone, the cause not having been reached for trial the day before. This was irregular, as it should have been submitted on the general call on the first day of the term, if the excuse existed then, or, if not, then on the first day the cause came on the day calendar; but the court entertained the motion and denied it. It could not have done otherwise, for the affidavit was insufficient. It stated that one Moore was in Toronto-, Canada, but did not show that he was a material or necessary witness. It did not state that he knew any fact that had to be proved, or anything that he would testify to. The next day (viz., October 30th) two other affidavits were submitted. This was still more irregular, for the affidavits were not of anything that had intervened since the motion was heard and denied. One was by Max Levy. He does not disclose who he is, or what he has to do with the case, but says that one Smith “is a mechanical engineer, and as such was employed by the defendant to investigate and examine each of the various attachments alleged to have been manufactured by the plaintiff ”. What relevant fact he knows of, or will testify about, is not stated. But the affidavit says that the affiant has made inquiry at the said Smith’s place of business at 180 DuaUe street, Manhattan, at various times beginning October 22nd, 1907, but is unable to ascertain his whereabouts. And yet this affidavit was not submitted to the court on the 28th nor on the 29th. He íurthér says that he is informed by the defendant’s attorney and believes that Smith is a material and necessary witness. Mere general statements that a witness is material and necessary are of no value even if positively made. The ■ facts must be given so that the court may draw the conclusion. The said other affidavit was by Sclilesinger, president of the defendant. He says that “ he is the sole and only witness for the defendant who is personally familiar with the facts in issue in this action ”, and that he is at present serving as a juryman in a trial in Hew York county which began on October 29tli. Knowing that the case of his company, in which he is the sole witness who is familiar with the facts, as he says, is on the day calendar for trial, he allows himself to be empaneled as a juror, when we all know that he had only to state his case in order to get excused. The court was entirely justified in disregarding his affidavit. It was an imposition on the court and on the other side.„ The court denied the motion to put the case off, whereupon the attorney for the defendant stated that an inquest would have to be taken and left the court room and abandoned his cause. From the opposing affidavit on the motion to open this so-called default it appears that the counsel for the plaintiff offered to postpone the trial if the defendant would give security for any judgment that might be recovered, and that the court acquiesced' in this but the defendant refused f also that the defendant was insolvent; also that the said alleged witness Smith was not absent at all, but was found at his residence in Manhattan. On the next day—October 31st — the cause was reached for trial and an inquest taken, no one appearing for the defendant. An execution against the defendant was returned unsatisfied, whereupon the plaintiff began an action against the defendant for sequestration of its property, and with a view of suing its directors to get a .personal judgment against them. It was only after all this, and not until November 14th, 1907, that the defendant obtained the order to show cause to' open the so-called default.

As Lord Mansfield tersely said in The King v. D'Eon (1 Bl. B. 510): “Three things are necessary to put off a trial. 1. That the witness is really material, and appears to the court so to Toe. 2. That the party who applies has been guilty of no neglect. 3. That the witness can be had at the time to which the trial is deferred.” This is still the rule. Facts must be stated which make it appear to the court that the alleged absent witness is a material and necessary witness. A mere statement of a conclusion to that effect is of no .force. It is for tlie court to draw the conclusion” from the facts stated. And it must appear that the party asking for a postponement is not guilty of neglect, i. e., that he did the work of locating his witnesses seasonably, instead of leaving it until the cause is about to be reached for trial, and also seasonably subpoenaed them, or in' the case of non-resident witnesses, applied for a commission to examine them (Wilkins v. Beadleston & Woerz, 33 Misc. Rep. 489; affirmed, 60 App. Div. 632).

But in addition to the merits, the motion to open the default was properly denied on another ground. As is stated in the foregoing, the calendar rules in this judicial department require that all motions to postpone trials be heard by the trial judges on affidavits, and this has been the practice ever since the said rules were adopted ten or more years ago. The purpose of the said rules was to do away with the abuse, and the wrong to diligent attorneys and litigants, of parties intentionally suffering defaults and then having them opened practically as of course on motion before a judge other than the trial judge. It is entirely obvious that when under the new system a trial judge has heard a motion to postpone on affidavits, to permit the party who made the motion to willfully suffer a default when his motion is denied, and then apply to another judge on motion to open the so-called default, would be appealing from one judge to another, and that is not permissible. His remedy is to appeal from the order of the trial judge to the Appellate Division (Herbert Land Co. v. Lorenzen, 113 App. Div. 802). We therefore adopt the opinion of the judge below, which is as follows in full:

“ When this case was reached for trial on the October Calendar of 'the Richmond County Trial Term, application was made by the defendant to the learned Justice there presiding, to postpone the trial. Affidavits were submitted in support of the application, and the Trial Justice denied the motion to postpone, and thereupon the plaintiff took an inquest and entered judgment thereon. The defendant now applies to this Court at Special Term to open the default and set aside the judgment. This application is based upon the same affidavits which were submitted to the Trial Justice, and two additional affidavits. Neither of the latter contain a statement of any facts excusing defendant’s default, but only give a detailed statement of defendant’s unsuccessful effort to obtain an adjournment from the Trial Justice. To entertain this application would be equivalent to sitting in review of his decision. This I have no power to do. I think that the correct practice is, to enter an order upon the decision of the Trial Justice refusing to postpone the case, and then appeal from such order.”

The order should be affirmed.

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

Order affirmed, with ten dollars costs and disbursements.  