
    George F. Johnson, Respondent, v. Helen F. Monahan, Appellant.
    (Supreme Court, Appellate Term,
    June, 1905.)
    Practice — Stipulation — Restoring cause to calendar after dismissal.
    Where a cause, which by stipulation had been adjourned to a particular day, is dismissed by the clerk on the call of the calendar the day before the adjourned day, the court may receive the cause and set a day for the trial over defendant’s objection.
    Appeal by the defendant from an order restoring the .above action to the calendar after it had been dismissed for failure of the plaintiff to appear, and from a judgment by default entered after the case had been restored to the calendar of the Municipal Court of the city of New York, .twelfth district, borough of Manhattan.
    •J. J. Karbry O’Kennedy, for appellant.
    Bradbury & Lee, for respondent.
   MacLean, J.

This cause being at issue in February, 1905, its trial was adjourned from time to time by consent to March thirteenth. Hpon the eleventh, it was agreed that it be further adjourned to the twenty-first and a stipulation -signed by the respective attorneys to that effect was mailed the clerk of the court the day following, a Sunday. On the twenty-first, both parties attended with their attorneys. Then it transpired that the stipulation not having reached the clerk betimes and no one appearing on the call of the -calendar the cause had been dismissed. The stipulation was produced by the clerk, the cause was restored and its trial set for the twenty-seventh, the defendant opposing, ^according to the order entered, but consenting according to the return. On the twenty-seventh, an inquest was taken, the defendant’s attorney appearing only and specially to contend that jurisdiction had been lost by the dismissal. That contention was not available then and there nor is it now and here. The learned justice did but, as he should, effectuate the stipulation. The agreement of the parties bound them and concluded the court in that proceeding and the court was-bound as between the parties to observe, enforce and carryout the agreement. Matter of N. Y., L. & W. R. R. Co., 98 N. Y. 447, 452. Proof having been given upon the inquest sufficient to sustain the judgment, that judgment should' he affirmed.

Sgott and Dttgro, JJ., concur.

Judgment affirmed, with costs.  