
    RAMSAY against THE ERIE RAILWAY COMPANY.
    
      Supreme Court First District; at Chambers,
    
      November, 1870.
    Opening Default. — Terms of Dismissal of Complaint.
    The dismissal of the complaint, at the trial of the action, by a justice of the court, upon the plaintiff’s submitting to a default, after he has unsuccessfully applied for a postponement, is not conclusive upon him; and he may apply to another justice of the same court for an order opening the default.
    Upon such application, the question is whether, taking into consideration all the facts and circumstances disclosed, and the proceedings in the action, the order of dismissal should be retained.
    An order upon the minutes of the trial term, dismissing the complaint and directing the cause to stand over to a specified date, to fix the amount of an allowance to the' defendants, and to give plaintiff leave at that time to open a default and try the cause,—is a mere judgment of dismissal; and the fixing the time and place at which which leave might be applied for, and coupling that with the condition that the plaintiff should then and there try the cause, are irregular, and do not conclude the plaintiff.
    Motion to open default.
    This action was brought by Joseph H. Ramsay against the Erie Railway Company and others, and at the October special term it was called on for trial. The plaintiffs’ counsel asked for a postponement of the cause, but defendants’ counsel insisted upon going on. The justice holding the court denied the motion to postpone, and directed that the cause proceed.
    The plaintiff, whose proceedings had been restrained by an injunction, objected that by reason thereof, he was necessarily unprepared for trial, and that rather than go to trial, he would submit to a nonguit, which was accordingly ordered, and an entry made in the minutes, which is stated in the opinion.
    The plaintiff now moved, before another justice, for an order vacating the dismissal of the action, and opening the default.
   Brady, J.

The dismissal of the complaint in this action by default, at the last October term, is not conclusive upon the plaintiff, although not ordered until after a motion to postpone the trial had been heard and determined against him; and an application to set aside the order may therefore be made, notwithstanding the quasi review of the decision of another justice which such a preceeding involves (Leighton v. Wood, Frst District, General Term, 17 Abb. Pr., 178).

The question, therefore, now presented, is whether, taking into consideration all the facts and circumstances disclosed, and the proceedings in this action, the order of dismissal should be retained. Upon what seems to me to be a much more elaborate exposition of such facts, circumstances and proceedings, and certainly a better opportunity for deliberation than can be afforded the justice presiding at a trial term, it is my judgment that the default should be set aside. I deem it unnecessary to express in detail the reasons which have led to this result. I consider it sufficient, on a motion of this character, to state generally the conclusions at which I have arrived.

It is proper, however, for me to say that the entry upon the minutes, which was as follows: “Complaint dismissed with costs upon order being entered, the cause to stand over to November 14, 1870, at half past ten o’clock A. M., to fix the amount of the extra allowance to the defendants, and to give the plaintiff leave at that time to open the default and try the cause,”—was, notwithstanding the leave suggested, a judgment of dismissal. The defendants, by their proceeding, were entitled to the order dismissing the complaint upon the denial of the motion to postpone, and to that only. They took more than that, as appears by the entry above set forth. They could not by their action, unsolicited by the plaintiff, name the time and place at which leave to open the default w'ould be given, and more particularly when such leave was to be coupled to the condition that he should then and there try the cause. They could not thus, without his application therefor, or approval thereof, limit or confine him to the tribunal to which he might apply for relief from the order made or judgment pronounced, or in any way anticipate the terms upon 'which such relief should be extended. I have heretofore, in the case of Bolles v. Duff (decided at the general term of this district, and reported in 56 Barb., 567), expressed my views to this effect upon a kindred proceeding, and. still adhere to them.

Ordered accordingly.  