p. 168sented thereto, sending the case back to the county where the venue was laid for a trial de novo, the mere fact that this order was not formally entered, and consisted simply of a written direction in the minutes of the clerk of the court in the county where it was made, is not ground for striking the case from the calendar when it is again ready for trial in the other county, especially if it appear that defendant's counsel learned of the order but made no motion to vacate it.
Where a judgment is taken by default the proper practice is to move at Special Term to have it set aside and for a new trial.
Abbeal by the defendant, the Wading River Realty Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Suffolk on the 16th day of February, 1910, upon the decision of the court rendered after a trial at the Kings County Special Term,.and also from an order made at the Suffolk Special Term, bearing date the 5th day of February, 1910, and entered in said clerk’s office on the 8th day of March, 1910, denying the defendant’s motion to strike the case from the calendar.
Edwin L, Kalish [Arthur Carter Hume with him on the brief], for the appellant.
Paul Armitage [George E. Darling with him on the brief], for the respondent.
This is an appeal from a judgment in favor of the plaintiff in an action brought to foreclose a mechanic’s lien on property situate in Suffolk county. The notice of appeal brings up for review an interlocutory order denying a motion to strike the case from the calendar when the action was reached for trial at a Special Term of this court held in Suffolk county on February 5, 1910. It appears from the record that when the motion to strike the case from the calendar was denied the defendant’s counsel formally withdrew from the trial and an inquest was taken in their absence. From the judgment entered on the inquest the defendant now appeals. The judgment so entered was, therefore, a judgment entered on a default, and no appeal therefrom lies to this court.
As to "the appeal from the order denying the motion to strike the
p. 169case from the trial calendar, a similar question arises. This action had been brought on for trial in Suffolk county before Mr. Justice Aspinall on .November 15, 1909. The parties entered into a written stipulation to begin the trial by swearing one witness for the plaintiff and then to continue it before Mr. Justice Aspinall in Kings county at a time to be fixed by him. This was done, and at the time fixed by the justice for the continuance of the trial there was an adjournment. On the adjourned date there was an unreadiness on the part of the defendant to proceed with the trial. In the absence of defendant’s counsel, but on the statement of plaintiff’s counsel that the defendant’s counsel had consented thereto, an order was made sending the case back for a trial
de novo at the next term of the court in Suffolk county. This order was not entered formally in Suffolk county, and consisted simply of a written direction in the minutes of the clerk of the court in Kings county, where Mr. Justice Aspinall was then sitting. The entry of the order was not essential to give it force.
(Eighmy v. People, 79 N. Y. 546 , 557.) The fact that the order was not in the usual and customary form, but consisted entirely of a written entry in the minutes of the clerk, was a sufficient compliance with section 767 of the Code of Civil Procedure.
(Gerity v. Seeger & Guernsey Co., 163 N. Y. 119 .) It appears that the defendant’s counsel became aware of the making of this order, but he made no formal motion to vacate it, contenting himself with writing in protest to the justice who made the order. When the case came on for trial the second time in Suffolk county, the defendant’s counsel made a motion to strike the case from the trial calendar on the theory that the order in question was either a nullity or that it had been procured by the false representations of the .plaintiff’s counsel. This motion was denied and an order entered accordingly. , It was not error on the part of the trial court to recognize the prior order as existing. The defendant, if aggrieved thereby; had an ample remedy to secure its vacation or modification by suitable application at Special Term. The common and long-settled practice would require the party aggrieved, under the circumstances of this case, to apply at Special Term, on motion, to set aside the judgment entered on the default and for a new trial.
(Martin v.
Hicks, 6 Hun, 74 ;
Matter of Rubenstein, 129 App. Div. 326 ;
Mott v.
Mott, 134 id. 569.) On such an applica
p. 170tion, if the plaintiff shows sufficient merits, he may receive such relief as may be appropriate.
The appeal from the judgment herein and from the interlocutory order of February 5, 1910, should be dismissed, with costs, but without prejudice to the defendant to apply to the Special Term for such relief as it may feel advised, within twenty days.
Jenks, P. J., Burr, "Woodward and Rich, JJ., concurred.
Appeal from judgment and from interlocutory order of February 5, 1910, dismissed, with costs, but without prejudice to the defendant to apply to the Special Term for such relief as it may feel advised, within twenty days.