
    Bertha E. Nahe, Individually and as Administratrix with the Will Annexed, etc., of Louise E. Nahe, Deceased, Respondent, v. Henry J. Bauer and Others, Defendants, Impleaded with Clark D. Rhinehart, Appellant. (Action No. 1.)
    Second Department,
    June 18, 1909.
    Practice— default — misconduct of attorney—relief.
    The proper practice to obtain relief from a default occurring through the wrongful neglect or misconduct of a party’s attorney is to move at Special Term to open the default.-
    
      Motion for a reargument of an appeal by the defendant, Clark D. Bhineliart, from an order of the Supreme Court, made at the Queens County Special Term and entered in the office of the clerk of the county of Queens on the 23d day of February, 1909.
    The case is reported in 133 Appellate Division, 373.
    
      F. Sidney Williams, for the motion.
    
      Edward G. Nelson, opposed.
   Gaynor, J.:

The motion for a reargument has to be denied. No grounds therefor are assigned. The motion is made on affidavits which disclose that the default occurred through the negligence or misconduct of . the attorneys for the defendants, or rather of their managing clerk, and an appeal is made to us to give relief therefrom. We possess no such function. We cannot go outside of the record, on appeal. There is no doubt of the power of the Special Term to open a default caused by the misconduct of the attorney of a party, and as this case seems to be one for relief on that ground, we suggest, that the proper motion therefor be made to the Special Term at once, so that the case may be tried before the summer vacation. It should have been made instead of appealing from the order of the trial Judge refusing to postpone the cause, for his action was entirely warranted, and necessary if false excuses and subterfuges to postpone the trial of causes are to be done away with. It is now asserted that the counsel on whose alleged engagement the postponement was asked for is not. the counsel who was in fact" going to try the. case, and moreover that there was a disinclination to try the case before the particular Judge' presiding at the time. The suggestion of counsel that our decisions preclude the making of a motion to the Special Term for relief from a default occurring through wrongful neglect or misconduct of a party’s attorney finds no support in anything we have, ever said or decided. We have decided the very contrary (Warth v. Moore Blind Stitcher & Overseamer Co., 125 App. Div. 211; Herbert Land. Co. v. Lorenzen, 113 id. 802). Where there is no such neglect or misconduct, and the motion to postpone is -heard on affidavits by the trial judge, as the calendar rules in this Judicial Department require, the case'is very different. To allow his ruling on the facts and merits to be set aside by a Judge at Special Term would be allowing an appeal from one Judge to another.

The motion for a reargument is denied, as the relief sought should be by a motion made to the Special Term.

TIirschberg, P. J., Jenks, Burr and Rich, JJ., concurred.

Motion for reargument denied, with costs.  