
    August Emanuele, Respondent, v. The Fruit Auction Company, Appellant.
    (Supreme Court, Appellate Term, First Department,
    February, 1916.)
    Default — when trial justice may properly grant — when affidavit in support of motion to open default insufficient.
    In the absence of an affidavit setting forth actual engagement of counsel or any other valid ground for adjournment, the case having been set down for trial by stipulation, the trial justice may properly grant a default and direct judgment with costs in favor of defendant.
    The affidavit of plaintiff’s attorney in support of a motion to open a default considered and held insufficient, and an order opening plaintiff’s default reversed, judgment in favor of plaintiff reversed, and judgment in favor of defendant reinstated.
    Appeal by defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, in favor of plaintiff, and from an order denying defendant’s motion for a new trial.
    McElheny, Bennett & Sicher (Dudley F. Sicher and William M. Bennett, of counsel), for appellant.
    Joseph Nicchia, for respondent.
   Guy, J.

Defendant appeals from a judgment in favor of plaintiff, and from an order denying defendant’s motion for a new trial, at the same time bringing up for review an intermediate order opening plaintiff’s default in suffering a judgment to be entered against him for $104.76 costs.

On a previous trial of this action, without a jury, the court awarded damages for plaintiff, which judgment was reversed by the Appellate Term as contrary to the evidence. 145 N. Y. Snpp. 936. The case was then placed upon the trial calendar for February 27,' 1914, at, which time plaintiff- demanded' a jury trial. Numerous adjournments were taken, and the trial was finally set down for April 7,1915. On that day, on the’ call of the calendar, .a clerk of associate counsel for plaintiff responded, stating that he had been informed by the clerk -of plaintiff’s attorney that plaintiff’s attorney, Mr. Nicchia, would be engaged in the Supreme Court on'that day and could not be present to assist in the trial of the action. The court then asked for the production of an affidavit setting-forth the facts stated, but the affidavit was not, produced; and on the second call of the-calendar no one answered for the plaintiff, whereupon Justice Spiegelberg diricted the complaint to be dismissed, and judgment was entered accordingly in favor of the defendant for $104.76 accrued costs and disbursements. Ten weeks later plaintiff moved to open the default, which motion was granted. The first point to be considered on thisi appeal is whether sufficient facts were presented by plaintiff in the moving papers to warrant the granting of said motion. The affidavit of Mr. Nicchia, plaintiff’s attorney, made in support of the motion, states that after long" delay and being twice, marked reserved generally ” the case was, by stipulation, set for trial February 17, 1915, and on that day was, by further stipulation, adjourned to April 7, 1915, on which day “ deponent was not able to be present at' the trial of this action as he was engaged in the Supreme Court, New York County, Trial Term,' Part, XVII, in the action of Munroe v. Sacca, ,et al., as well as in Part II for trial in the action of D’Anci v. Saitta that on the day previous he endeavored to conne.ct'.with defendant’s attorneys by telephone, but' failed to do so, and requested Ms clerk to notify “ Mr. Aaron Morris, deponent’s associate, who is the counsel in the case herein, to get an adjournment; ” also “ that on the 7th day of April, 1915, deponent was actually engaged in the cases aforesaid, and also in the Bankruptcy Court in the Matter of Caleca, which hearing was set for 11 o’clock; ” and further “ that deponent has had interviews with the plaintiff herein and from the facts stated to him the plaintiff has a good cause of action against the defendant herein.” The affidavit does not state that plaintiff has fully and fairly stated the facts in the case to the deponent. ,,

Defendant presented affidavits, in one of wMch extracts were set forth from the Law Journal of April eighth, whereby it conclusively appeared that plaintiff’s attorney was not and could not have been actually engaged in either Part XVII or Part II of the Supreme Court, as averred, for the reason that neither of said cases was tried on April 7, 1915.

In the absence of an affidavit setting forth actual engagement of counsel, and in the absence of any other valid ground for an adjournment, the case having been set down for trial by stipulation, the trial justice properly granted the default and directed judgment for costs in favor of the defendant; and unless we are to' adopt the rule that any litigant may submit to a .default, and, without presenting any ground whatever, except a belief of counsel on such facts as his client may see fit to acquaint him with, that there is a good cause of action, the litigant shall be entitled to open the default, the motion should have been denied. To adopt such a rule would be, in effect, to nullify the effect of the provisions of the Code providing for the taMng of judgment by default.

Judgment in favor of plaintiff reversed with thirty dollars costs to the defendant-appellant; order open-' ing plaintiff’s default reversed and judgment of April 7, 1915, in favor of defendant, reinstated.

Bijur and Gavegan, JJ., concur.

Judgment reversed, with thirty dollars costs, to appellant. Order opening default reversed and judgment in favor of defendant reinstated.  