Reich v. E. W. Bliss Buildings, Inc. — 170 A.D. 842

Majority

p. 842

Elizabeth Reich, Respondent, v. E. W. Bliss Buildings, Incorporated, Appellant.

First Department,

December 30, 1915.

Headnote

Practice — motion to open default—failure of moving party to comply with condition imposed.

Where the trial court granted an adjournment of an action which was moved.for trial by the defendant upon the condition that the plaintiff file a written stipulation that the case might be dismissed if a judgment previously rendered in favor of defendant in a similar action should be affirmed, and the plaintiff failed to file such stipulation, he is not entitled to open a judgment subsequently taken against him by defaxilt, there being no valid explanation of his failure to file the stipulation required.

Appeal by the defendant, E. W. Bliss Buildings, Incorporated, from an order, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 17th day of June, 1914, as resettled by an order entered in said clerk’s office-on or about the 16th day of October, 1914, opening plaintiff’s default.

Chester W. Cuthell, for the appellant.

Charles R. Carruth, for the respondent.

This action was commenced in May, 1906. A similar action for a much larger amount was brought to trial in April, 1914, and after a five days’ trial the jury found for the defendant. The present action, which was also on the calendar, was then brought on for trial on April 27, 1914, before the trial justice and the defendant moved the trial thereof, when plaintiff’s attorney asked that the trial be delayed pending the determination of the appeal in the other case. The court replied: “I will make this disposition of the matter: Unless the plaintiff files a written stipulation that in the event that the judgment in the action which has been tried is affirmed, the case of Reich v. Bliss Buildings may be dismissed; otherwise the action is set for trial for the second Monday of May.” The date for the filing of the stipulation was

p. 843

fixed by the court at April thirtieth. No such stipulation was ever filed on behalf of the plaintiff, but the case appeared on the day calendar in Trial Term, Part IV, on May eleventh, and, the plaintiff not appearing, the defendant moved the case for trial, plaintiff’s default was noted, and judgment was entered on May thirteenth, dismissing the complaint. Thereafter the plaintiff moved to open her default, which was granted, on payment of twenty-five dollars costs. We are of the opinion that plaintiff has not made any sufficient explanation of her default herein. While her attorneys claimed that they expected that the case would appear again on the calendar of Part XIII, which was the part where the trial judge disposed of the matter as hereinbefore stated, and that they were watching for the appearance of the case on that calendar, and not on Part IV, where it actually appeared, there was no reason why they should have expected its appearance in Part XIII, as they had not complied with the terms imposed by the court as a condition for the adjournment which they asked; namely, that they should file a written stipulation that this case should be dismissed in case the judgment in Reich v. Lane was affirmed. That stipulation never has been filed, nor is there any valid explanation of the failure to file it. The plaintiff, therefore, never complied with the terms upon which the first adjournment was obtained. Upon this state of facts plaintiff was not entitled to have her default opened, and the order appealed from is, therefore, reversed, with ten dollars costs and disbursements, and the motion to open the default denied, with ten dollars costs.

Present — Ingraham, P. J., Laughlin, Clarke, Dowling and Smith, JJ.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.