
    Gaetano Marchesini and Louis Marchesini, Respondents, v. Giusepre Scaccianoce and Giuseppe Silvestro Puleio, Appellants.
    First Department,
    ,December .30,'1905..
    Inquest — default of a defendant, when opened—excuse for not executing commission to take testimony,— terms. ,
    When, in an action against a foreign defendant for breach of contract) a eommissionto take testimony in -a foreign country has been" issued, but ;not eke-- ' cuted, because, as shown by affidavit of defendant’s counsel, he went to the foreign country to obtain the evidence in person, and was there delayed, an inquest taken in the meantime after a denial of defendant’s request for an adjournment should be opened and the defendant let in to defend.
    This, however, should be upon the condition that defendant pay costs and disbursements.
    Appeal by the defendants, Giuseppe Scaccianoce and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 10th day of November, 1905, denying the defendants’ motion to open their default.
    
      Philip S. Saitta, for the appellants.
    
      George J. McDonnell, for the respondents.
   Ingraham, J.:

The plaintiffs, residents of the city of New York, seek to recover from the defendants, residents of Messina, Kingdom of Italy, for a > breach of a contract to deliver oil in the city of New York. One of the defendants interposed an answer denying the breach, and setting up a counterclaim, and the other defendant answered denying that he had any connection with the. contract, or anything to do with it. The defendants then applied for a commission to take testimony in Italy, which was granted, but which was not executed; and the cause was subsequently placed upon the special calendar. The rea- ■ son why the commission was not executed was that counsel for defendants contemplated making a visit to Europe; when he would see his clients and obtain the evidence without the. necessity of a commission. In his affidavit counsel stated that he left New York for Europe on August 2, 1905 ; that he was detained in Europe longer than he expected and did not return until after the inquest had been taken. The ease finally came on for trial on the sixteenth day of October, then the trial judge refused further to .postpone the case and an inquest was taken. The motion to open this inquest was denied upon the ground that it was substantially a . renewal of the motion made at Trial Term to adjourn the case. I think this is hardly a correct way of looking at an application of. this kind. A motion addressed at Trial Term to adjourn a case, where no legal ground of adjournment is stated, is quite properly denied when, upon the same facts, the court at Special Term would he justified in opening an' inquest as it can impose terms as conditions upon which the inquest will be opened which it would be improper to impose at Trial Term.

There seems to be in this case a fair question as to the breach of ihe contract upon which the plaintiffs seek to recover. A denial of this motion disposed of the issues and ended the controversy in favor of the plaintiffs without giving the defendants their day in court and. a chance to prove their defense. - The absence of counsel for the defendants who had charge of the case in Europe, and his detention there, is á reason why it was impossible for them to go on with their trial; and I am inclined to think the court at Special Term should haye exercised its discretion in favor of allowing the de elidan ts their day-in court. This,, however, should be upon the terms that the defendants should pay as a condition of setting aside the inquest a trial fee of thirty dollars, a term fee of ten dollars, ten dollars for opposing the motion, and all the disbursements the plaintiffs incurred in taking the inquest and entering judgment, the judgment to stand as security until the final determination of the action.

The order should, therefore, be reversed and motion granted upon complying with the foregoing terms within ten days after service of a copy of the order. If terms are not complied with, motion denied, with ten dollars costs. Ho costs of appeal.

O’Brien, P. J., McLaughlin, Clarke and Houghton, JJ., concurred.

Order reversed and motion granted on terms stated in order. If terms are not complied with, motion denied, with ten dollars costs. Ho costs of appeal.  