
    (49 App. Div. 76.)
    GOODNESS v. METROPOLITAN ST. RY. CO.
    (Supreme Court, Appellate Division, Second Department.
    March 28, 1900.)
    Judgment — Default—Motion to Set Aside — Costs.
    Defendant, whose case stood third on the calendar, learning that the case next ahead would take some time for trial, notified his counsel that ■he need not attend the call. The prior case not being ready, defendant’s case was called, and an inquest and default taken. Held. that, on setting: aside the default, defendant should be charged with the costs of the action as taxed in the judgment.
    Appeal from special term.
    Action by Theodore Goodness against the Metropolitan Street-Railway Company. Judgment for plaintiff by default, and from an order opening the default' he appeals.
    Modified and affirmed.
    Argued before GOODRICH, P. J., and BARTLETT, HATCH,. WOODWARD, and HIRSCHBERG, JJ.
    Algernon S. Norton (Henry W. Bookstaver, on the brief), for appellant.
    Charles F. Brown (Henry A. Robinson, on the brief), for respondent.
   PER CURIAM.

It appears without dispute that, when both parties answered ready for trial upon the call of the calendar, the-case stood third for trial. Subsequently the defendant’s representative learned that the first case would not be tried, but that the second case would be ready, and would take about three hours. Thereupon the defendant’s representative notified the counsel employed' to try the case that he need not attend in court upon the call of" the calendar, but might come later. When the court opened, the-cause that was supposed to be ready for trial was not tried, and this case, standing next, was immediately reached. The trial court insisted that it should either be tried or go over the term, and the plaintiff, having no other alternative, took an inquest. Defendant’s representative, who was present at the time, thereupon refused to take any part in the proceedings, and the default was taken. Subsequently, upon motion at special term, the judgment which had been entered was set aside, and the default opened, and the cause restored to the calendar for trial, upon the payment of the trial fee, $10 costs of the motion, and disbursements. The costs entered in the judgment were $168.01.

It is quite apparent that the defendant presented no valid excuse for not being ready to proceed with the trial when the cause was reached in its order. By its own act it had prevented the counsel who was to try the cause from being present in court when the case was reached. It is so common an occurrence for a cause standing at the head of the calendar to be postponed for some sudden and unexpected reason that it is inexcusable in counsel having cases upon the day calendar not to be ready for trial, in anticipation of such a result. Scarcely a term of court is held that such contingencies do not frequently arise, and experienced counsel are as familiar with the fact as the court. The practical result is that the party who is ready is compelled either to take a default or postpone the trial, the court is obliged to adjourn for lack of business, and the judicial machinery breaks down through what is inexcusable neglect. Those who are responsible for this condition ought to be held to rigid accountability. Indulgence of these practices only creates their frequent occurrence, and from the condition arise complaints of the trial courts and litigants, the latter of whom have been guilty of no dereliction whatever.

We see no cure for what seems to be not only clear negligence, but sometimes intentional action, except to impose such terms upon those creating the condition as will prevent its recurrence. We think the terms imposed in the present case are not adequate to properly compensate the plaintiff, and are quite sure that they will have little deterrent effect upon future practice of this character. While we have much of disposition to restore this judgment, yet we think that justice will probably be more nearly attained by imposing upon the defendant the payment of the costs of the action as taxed in the judgment.

The order should therefore be modified in this respect, and as modified affirmed, with $10 costs and disbursements to the appellant.  