
    Abel Harker vs. Elisa McBride, &c.
    Defaults taken on the first or second days of the general term in October at Rochester, in causes low down on the calendar, will be opened on terms, where counsel opposed, residing at a distance, did not arrive in season to argue.
    
      Motion by plaintiff in error to open the defaults taken in said causes at the last October (general) Term, held at Rochester.—Issue joined in these causes 15th July last; plaintiff’s attorney had omitted to prepare for the argument on the first day of the term, believing from the dates of the issues, that the causes would stand low on the calendar, and consequently not be reached the first day; his papers were ready, and he intended to have his counsel argue them, at the October term; he had offered defendant’s attorney costs of default and subsequent preceedings, to have defaults opened, and offered to argue them or submit them, at the October term. Defendant’s counsel insisted that excuse must be given for default in not being ready, 5th Hill, 509; defendants were not bound to waive defaults, 12 Wend. 198.
    The Judge said the Court at every term held at Rochester had been through the calendar on the first or second day of the term. But as this seemed not to be generally known among the profession the defaults must be opened on terms.
    James Moncrief, Plffs Atty. W. H. Taggard, Defts Atty.
    
   Decision.—Motion granted on payment of costs of October term and costs subsequent to said term and costs of opposing motion.  