
    Robert McDonald et al., App’lts, v. Simon D. Heineman et al., Impl’d, Resp’ts.
    
      (Supreme Court, General Term, First Department
    
    
      Filed June 6, 1890.)
    
    Default — When will not be opened.
    Plaintiff having answered on the call of the calendar several times moved for leave to discontinue without costs, but presented no affidavits. On a subsequent call judgment was entered by default. Held, that such default would not be set aside as it was regular and the cause of action was a fail _re from the time of the demurrer.
    
      Appeal from, order and judgment. The order is one denying plaintiffs’ motion to open default.
    
      £ lumenstiel & Hirsch, for appl’ts; Benno Loewy^ for resp’ts.
   Brady, J.

The plaintiffs having answered ready on the call of this action for trial several times, when it was finally reached moved for leave to discontinue without costs, but did not present any ¿affidavits bearing upon 'that motion before the case was again called and judgment entered by default. The plaintiffs with an apparent design of procuring a vacatur of the default, procured a stay which the respondents’ counsel says was obtained to enable the appellants’ counsel to go on a fishing excursion, a source of pleasure which, while it is an innocent and exciting pastime and should be encouraged for its gratifying results, though not always truthfully told, should not. be made to depend upon the exercise of judicial power. Some more serious objection, though not of greater depth, should hay ebeen presented. It was apparent however that the attempt to open the default was fanciful, not real. The proposition to try a cause to save the payment of costs except in cases of the absolute insolvency of the adverse party, is too novel to be impressive, and the learned justice presiding at the trial term no doubt so regarded it, and perhaps as well that there was an under current of professional pique prompting the effort, and which no doubt resulted in this appeal. There is really nothing to sustain it and therefore nothing to consider here now. The default was regular and the subsequent proceedings by the plaintiffs destitute of merit in any sense. The cause of action was a failure from the time of the demurrer, so felt by the plaintiffs’ counsel and substantially so conceded on this appeal. The learned counsel for the appellants know this thoroughly. The appeal must therefore fail and the order and judgment appealed from be affirmed, but as the appeal was presented as one from a motion and is so treated, costs of such a proceeding only will be allowed, namely ten dollars costs and the disbursements of the appeal. Ordered accordingly.

Van Brunt, P. J., and Daniels, J., concur.  