
    Annie Fallon, an Infant, by Rose Fallon, Her Guardian Ad Litem, Respondent, v. Emma Crocicchia, Appellant.
    (Supreme Court, Appellate Term,
    January, 1907.)
    Municipal Courts: Procedure — Course and conduct of trial — Excluding party from participation in trial, Vacation of judgment — Terms; Review — Time of taking — When not premature.
    Trial — Course and conduct of trial in general — Proceedings in absence of part)' — Exclusion of party.
    Tire denial of defendant’s right to participate in the trial of an action in the Municipal Court of the city of New York and to interpose her defense, because of her failure to pay costs imposed as a condition of a prior adjournment, is error; and a judgment for plaintiff obtained under such circumstances is appealable, as is also an order vacating and setting it aside upon condition that defendant deposit, on or before a certain date, the amount of the judgment as security for the payment of any judgment that the plaintiff might obtain and also providing that, in case of noncompliance with its terms, defendant’s motion under section 254 of the Municipal Court Act bo denied.
    The defendant’s right to appeal was available until the judgment was actually vacated, and her appeal will not be dismissed because taken prior to the expiration of the time granted her to comply with such order.
    An objection that the motion to vacate the judgment was not made within five days, as prescribed by section 254 of the Municipal Court Act, may not be urged for the first time on appeal.
    The defendant, having been denied her day in court, was entitled to have the judgment vacated as matter of right without the imposition of conditions.
    Appeal by the defendant from a judgment and order of the Municipal Court of the city of ¡New York, ninth district, borough of Manhattan.
    Paul Gross (Herman Kahn, of counsel), for appellant.
    Henry W. Herbert, for respondent.
   Blanchard, J.

The defendant appeals from a judgment entered against her on the 31st day of October, 1906, in favor of the plaintiff for $491, and also from an order which vacated such judgment upon compliance with certain terms therein named. It appears from the papers used upon the motion that, after issue was joined in the case, several adjournments were had and the case was finally reached upon October 24, 1906, at which time the case was called for trial. The defendant’s attorney, on the morning of that day, being engaged in the trial of an unfinished case in another Municipal Court, sent his representative to attend the call of this case, who thereupon attended in court and asked that the case be held for a short time until the defendant’s attorney could reach the courtroom. The ease was adjourned, however, until October 31, 1906, and the defendant was ordered to pay the sum of ten dollars costs and a jury fee. Upon whose application this adjournment was had there is some dispute. The record shows, however, that, on said 31st day of October, 1906, when the parties appeared for trial, a jury was empaneled and sworn; and, it appearing that the defendant had failed to pay the ten dolíais costs and the jury fee as theretofore directed, the court ordered the payment thereof before twelve-thirty on that day. At twelve-thirty, upon the case being called again and all par-lies being present, the court, upon being informed that the costs had not been paid, precluded, the defendant from further appearing in the action. The defendant and her witnesses apparently remained in court and her counsel sought, during the trial, to cross-examine the plaintiff’s witnesses and to object to questions asked by plaintiff’s counsel, which was denied him, and he was also denied the right to put in any defense and, at the close of plaintiff’s case, judgment was entered against the defendant upon the testimony thus adduced from plaintiff’s witnesses. Subsequently, the defendant made a motion that the judgment be vacated and set aside, and the case set down for trial, and the defendant be allowed to defend the action, and also to be relieved -from the payment of the costs and fees imposed by the order of October 24, 1906. This motion was based upon affidavits setting forth in substance that, on the morning of October 24, 1906, when the case was called for trial, defendant’s attorney was engaged in the trial of another action in another Municipal Court, which trial had been commenced on October twenty-third and was not then concluded; that his representative, on the morning of October 24, 1906, when this case was called, asked that the trial be delayed for a short time until defendant’s attorney could attend and try the case, and that the court denied this application and adjourned the trial on his own motion and directed that the defendant pay to the plaintiff ten dollars costs and a new jury fee. The plaintiff in answer to this in his opposing affidavit describes what occixrred on October 24, 1906, somewhat differently, alleging that, when the case was first called, the defendant applied to have the case held for the appearance of defendant’s attorney, which request was granted, and that, upon the second call of the calendar which occurred about twelve-thirty p. m., defendant’s representative again asked the court to hold the case, as defendant’s counsel had not yet arrived, to which request the court insisted that the case go to trial or be adjourned for one week and that, if the case was adjourned, he should impose the payment 'of ten dollars costs and the jury fee upon the. defendant and that, thereupon, the defendant’s representative “ adopted ” the latter course and the case was adjourned and the costs and fee imposed as aforesaid. After hearing the motion, the court, on ¡November 15, 1906, made an order vacating and setting aside the judgment, upon condition that the defendant deposit with the clerk of the court, on or before ¡November twenty-eighth, the sum of $491, the amount of the judgment, as security for the payment of any judgment that might be obtained by the plaintiff, and also ordering that, in case the defendant failed to comply with the terms of said order, the motion be denied. As before stated, the defendant appeals from both the judgment and the order. .Whether or not the case was adjourned upon the court’s own motion, as claimed by the defendant, in which case no terms could be imposed, or upon the request of the' defendant, in which case the imposition of terms was proper (Mun. Ct. Act, § 336), need not how be determined. The trial court was clearly in error in denying defendant the right to participate in the trial of the action, and to interpose his defense, for failure to pay such costs. Farber v. Flauman, 30 Misc. Rep. 627. It is not the case, nor could it successfully be claimed, that a judgment obtained under such circumstances as here disclosed, .is not appeal-able; and the fact that the appeal herein was taken before the time given the defendant to comply with the terms of the order vacating the judgment had expired is no reason why such appeal should be dismissed. The judgment remained in force until the defendant had complied with the terms and conditions of the order, and the right of the defendant to resort to her remedy by appeal was available until the order had been complied with and the judgment actually vacated. The motion to vacate the judgment was evidently made under section 254 of the Municipal Court Act, and was based upon the exceptions duly taken to the ruling of the court in denying the defendant the right to defend the action. Such an order is appealable and may be reversed, the prohibition of section 257 applying only to appeals from orders opening defaults and vacating judgments where application therefor is made under the provisions of section 253 of the Municipal Court Act. Whether or not such motion was made within the five days prescribed by section 254, Municipal Court Act, is unimportant, as no objection was made in the lower court to the hearing of the motion upon that ground and cannot now be urged. Krakower v. Davis, 20 Misc. Rep. 350; Scharmann & Sons v. Bard, 60 App. Div. 449. The defendant was entitled as a matter of right to have the judgment vacated, the defendant having been wrongfully precluded from having her day in court. Such being the case, the judgment should have been vacated without the imposition of any conditions. Terriberry v. Mathot, 110 App. Div. 370; Smith v. City of New York, 55 id. 90; Marsh v. Nassau Show Case Co., 56 N. Y. Supp. 1083.

Judgment reversed and order vacated and new trial granted, with costs to appellant to abide the event.

Gtldersleeve and Dayton, JJ., concur.

Judgment reversed and order vacated and new trial granted, with costs to appellant to abide event.  