
    Frances A. Robinson, Respondent, v. Mary A. De Fere and Others, Respondents, Impleaded with Arthur B. Swezey and Others, Appellants.
    
      Trial calendar at New York Special Term — when counsel has been notified that' a case will be called for a/rgunieñt the next day in the Supreme Court of the United States he is-entitled to have the tidal adjourned — effect of his statements not being reinforced by his affidavit.
    
    Where, when a case on the Special Term, calendar of the Supreme Court in Mew York county is called for trial, the counsel engaged to try the casé on hehalf of some of the defendants makes an application for the adjournment of the . trial, stating as one of the grounds therefor that he is engaged to argue a case then on the calendar of the Supreme Court of the United States, and that he has been notified by the clerk of that court that the case will be called for argument on the next day, it is the duty of the court under rule 9 of the Rules for the Regulation of the Special Terms of the Supreme Court in the First Judicial District to grant the application for the adjournment.
    Appeal by the defendants, Arthur B. Swezey and others, 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 16th day of May, 1905, denying the said defendants’ motion to open a default.
    
      Lucius H. Beers, for the appellants.
    
      George Flint Warren, Jr., for the plaintiff, respondent.
    
      Stephen W. Linington and William M. Coleman, for the defendants, respondents.
   Patterson, J.:

The defendants Richard T. Swezey, Arthur B. Swezey and Edgar L. Swezey and their respective wives, and the defendant M. Isabelle Swezey, are parties defendant in a partition suit. The premises sought to be partitioned belonged in his lifetime to Noah T. Swezey. By his will he left his estate to trustees to receive the rents, issues and profits during the lifetime of his widow and to pay the same to her so long as she lived and, after her death, to his children then living and the issue of such as might have died, such issue to take the share the parent would have been entitled to if such parent had lived. The widow of the testator died in 1903. There were then living the testator’s daughter Frances Robinson, the plaintiff, and seven children of Christopher Swezey, a deceased son of testator. There was a third son of the testator named Ethelbert T. Swezey, who had not been heard of for some four years or more. He had previously conveyed his interest in his father’s estate to the trustees, and had released to them such interest. Ethelbert T. Swezey had three children and a wife, who are defendants and appellants here. It is set up in the amended complaint that if living Ethelbert T. Swezey is entitled to one-third of the property sought to be partitioned in this action, and that if dead his sons are entitled to one-ninth, unless his share has been duly conveyed or released. The children of Ethelbert T. Swezey allege that he died in 1899; that the instrument called a release or conveyance was executed without consideration, and that at the time of its execution Ethelbert T. Swezéy was mentally incapable of making the same. It is apparent, therefore, that very serious issues respecting the rights and interests of the parties in and to the premises sought, to be partitioned were presented to the court for determination.

Issue was joined in the action November 7, 1904. The cause-was put upon the Special Term calendar and was reached for. trial, on March 6, 1905. Meantime delays had taken place in the trial resulting from motions made of various kinds, particularly one-, relating to the taking of testimony in the' west concerning the. habits, physical condition, whereabouts and movements of Ethelbert. T. Swezey, who had disappeared and had not been heard of fórsome four years, as before stated. On the 6th of March, 1905, the-cause was called for trial, and the plaintiff and certain of the defendants, respondents herein, were ready for trial. Counsel for the-representatives of the alleged- interest of Ethelbert T. Swezey made application for an adjournment, which application was denied, it. being statéd in the record as follows: “ Messrs. Lord, Day & Lord, represented by Lucius II. Beers, were present at the call of the calendar, arid on ■ the Court’s marking the cáse ready for "trial, Mr.. Beers stated "that he was not ready to proceed and would not appear, the Court stating that he liad no legal excUse for an adjournment.” That is all that is disclosed by the record of the trial ás having taken place at the trial on a motion for an adjournment. The trial was théii proceeded with and resulted in the court making findings of." fact and conclusions of law upon which a final judgment was entered, containing, among other things, the following: -. “ The-, defendants Ethelbért T. Swezey and M. Isabelle Swezey, his wife; RichardT. Swezey.and Florence, his wife; Arthur B. Swezey and’ Grace Swezey, his wife; Edgar L. Swezey and Grace Swezey, his. wife, Lavé no right, title, share or interest in or to the real property aforesaid, ilor in or to. any part or portion thereof.” On May 1, 1901, the attorneys for the present appellants moved the court to-open the default taken against them at the trial, to vacate all proceedings had thereat, as well! as the decision made and filed after the trial and the judgment entered thereon, and to restore the cause, to the ’ calendar arid for a new trial. Voluminous affidavits and récords were presented on that motion, which was denied:, arid from the order of denial the present appeal is taken.

On. the application for an adjournment at the trial no affidavit, was presented by the applicant, but that omission is not insisted upon by the respondents. A particular ground upon which the application was made was that Mr. Beers, of counsel in the case and to whom was confided the duty of trying it for those representing the Ethelbert T. Swezey interest, was engaged to argue a cause then on the calendar of the Supreme'Court of the United States, and which cause he was notified by the clerk of that court would be called for argument the next day. There can be no doubt of'the fact that a cause in which Mr. Beers was to be engaged was on the calendar of the Supreme Court of the United States on the sixth day of March, or that it would be called on the seventh day of March, for it actually was called and argued on that day, Mr. Beers being present in Washington and taking part in the argument. The question primarily presented here is whether Mr. Beers had a legal excuse for not proceeding with the trial of this action when it was called on the 6th day of March. We are of the opinion that he had. Rule 9 of the Rules for the Regulation of the Special Terms of the Supreme Court in the First Judicial District provides, among other things, as follows: “ In a cause upon the day calendar for trial, where it shall appear to the court by affidavit that counsel who is, to try the cause is to argue a cause upon the day calendar of the Supreme Court of the United States, or upon the day calendar of the Court of Appeals of the State of New York, or upon the day-calendar of any Appellate Division of the Supreme Court, or is aotu~ally engaged in the trial of a cause in a court of record in the counties of New York or Kings the cause shall be passed for the day or until such argument or trial is concluded, unless the trial in which the counsel is engaged is a protracted one. In no other event shall a cause upon the day calendar be passed for the day.”

It is to be observed that this rule contemplates two situations, one in which the counsel is to be engaged in a cause in, a court at a distance, and one in which he is actually engaged in a court of record in the counties of New York or Kings. Where the case is. in the Supreme Court of the United States at Washington or in the Court of Appeals of the State of New York at Albany, it is a sufficient legal excuse if the counsel who is to try a case at a Special Term of the Supreme Court in the First Judicial District is to argue a cause, upon the day calendar of either of-the courts at a distance whereas if he is to try or argue a cause in a court of record in the counties of New York' or Kings, he must be actually engaged therein in order to make his excuse valid.

That it does not appear in the record that an affidavit of Mr, Beers’ engagement in Washington was presented to the trial.court here is not material, for, very properly, the respondents make no objection on' that specific ground. As said before, Mr. Beers’ statements are true. Wé consider, therefore, that he had a valid legal excuse for asking to postpone the trial of this cause. His case was on the day calendar of the Supreme Court of the United States on the sixth of March, He was to argue it and did argue it when it was reached the next day on the calendar of that court. His excuse was sufficient and was within the rule. It is immaterial that other reasons were urged for a postponement. We-have no disposition to review the action of the court in refusing to postpone the trial upon. other grounds. We fully recognize the importance of sustaining the efforts of the trial courts to prevent the unnecessary delays which are constantly occurring in bringing causes to trial and will sustain them in every proper case. But where á legal and valid excuse for a postponement exists, a party cannot be deprived of his fight. This case is not affected by the suggestion made when it was called that the trial might be begun on the sixth, and then adjourned over the seventh to soine subsequent day. Counsel, in applying for the adjournment, was strictly and technically entitled to a postponement under the rule, and, on that ground, we think the adjournment should have been, granted until his engagement at Washington was completed.

We think the order, therefore, should be reversed and that the judgment' should be' vacated and the proceedings at the trial set aside and a new trial ordered and that the cause be set down for trial at the next Special Term of the Supreme Court in the county of New York, with costs and disbursements in this court to appellant to abide event., - .

O’Brien, P. J., Ingraham, McLaughlin and Hatch, JJ., concurred.

Order reversed and judgment vacated and new trial ordered as directed in opinion, costs to appellant to abide event.  