
    COURT OF APPEALS,
    SEPTEMBER TERM, 1848.
    Vanderheyden and Wife, Appellants, vs. Mallary & Hunter, Respondents.
    
      It seems, where a default ia opened by this court upon terms, in addition to the excuse shown, the applicant will be required to pay the costs of the term to be taxed and of opposing the motion, with $50 counsel fee, and to be ready to argue the cause the first opportunity. Where, however, it appears that the costs of the term and $50 counsel fee have been offered and refused, previous to the motion papers being made and served, no costs of opposing the motion will be given.
    
      Court of Appeals,
    
      September Term, 1848.
    This was a motion on the part of the appellants to open a default taken in this canse hy the respondents, at the last June term, held at Rochester, affirming the decree of the Chancellor.
    It appeared that the parties on both sides and their solicitors and counsel resided in the city of Troy. The cause was noticed for June term, and put upon the calendar by both parties. The appeHant’s counsel, Mr. Hayner, intended to argue the case when reached, which stood Ho. 34 on the calendar, and agreed with the respondent’s counsel, Mr. Buel, to send him a telegraphic communication when the cause was likely to be reached—which was done—stating that the calendar had been called through, and this cause had been reserved; this was received” by appellant’s counsel the evening previous to the day of the final adjournment of the court; and not in time to reach the term before the adjournment.
    The term of the court commenced on the 20th of June and finally adjourned on the 24th of June; being in session but five days; and the sudden adjournment was stated to be a great surprise on the part of the appellant’s counsel. He offered to pay respondents’ counsel Ms costs of the term and $50 counsel fee, to open the default without application to the court, which was declined.
    H. Z. Hayner, Counsel for Appellants.
    
    D. Buel, Jr., Counsel for Respondents.
    
   The court set aside the default on payment of the costs of the term, with $50 counsel fee, and on being ready to argue the cause tMs term, if an opportumty should be presented.  