Post v. Wright — 1 Cai. 111

Majority

p. 155

Post against Wright and Buchan.

Headnote

If a cause has been duly set down upon the day calendar, and on being call ed, the defendant does not appear, nor his counsel who is then in court, the plaintiff may take an inquest, which the court will not set aside though merits be sworn to, if the absence of the defendant's counsel be not accounted for.

An inquest had been taken in this cause, at the last sittings, in June, at New York

Hoffman

moved to set it side, on two affidavits; one made by the defendants, which stated, that they verily believed that, they had a good, substantial and legal defence; the other by the counsel in the cause. This last set forth that he was counsel for the Humane Society of New-York, and, in that capacity, obliged to visit the gaol on Monday in every week; that this cause being noticed for trial on a Monday, he came into court instantly after discharging his

p. 156

duty to the society, when he found, an inquest had been taken in the suit; that he, on the same day, wrote to the attorney of the plaintiff, offering to pay all the costs of the inquest, and to engage to try the cause in the then sittings, if the plaintiff would abandon his inquest, which he refused to do.

Hoffman also observed, the calendar had been gone through more than once, and that the plaintiff needed not to have lost the sittings but for his own obstinacy.

* Woods

relied on the counter affidavit of the plaintiff’s attorney, which stated, that the cause was duly set down in its order on the day docket; that it was regularly called and tried; that when called on,-- ■-, Esquire, was in court, and, in the hearing of the deponent, said he was of counsel for the defendants, but as he did not see his client, nor any of their witnesses, he would not appear; that on this the defendants were called, and an inquest taken.

Woods remarked, that, if, after these facts, the inquest should be set a side, there would be no end to these applications. A defendant had only to keep himself and his witnesses, or even his counsel, out of the way, and be sure to gain a term whenever he pleased.

All reasonable notice to attend and defend the suit was given. The cause was on the day docket, and there is no kind of excuse^[1] why the defendant was absent.

(a) (a) See M'Kay v. Marine Ins. Co., 2 Caines’ Rep. 384 , the absence of coun Bel discountenanced as an excuse; and Sayer v. Finch, lb. 336. The same excuse reluctantly admitted, though the plaintiff’s counsel was absent, from an opinion that the cause would not come on, induced by expressions to that effect from the partner of the attorney on record for the plaintiff. The rule seems to be, that as it is the duty of counsel and attorney to attend, that duty will not be dispensed with, unless in cases of necessity, or misconception. See Rogers v. Garrison, 2 Caines’ Rep. 379 . See also Farnam v. Despard, 1 Wend. 287 ; Jackson v. Wakeman, 2 Cow, 578 .

p. 157

He had a counsel in court, and might have been there himself, with his witnesses. The defendant, therefore, can take-nothing by his motion.

Hoffman urged strongly the rigour of the practice, that it would operate only against the attorney of the plaintiff, that it was the first instance of such strictness.

The Court answered, there must be a first time in all proceedings; that they found it necessary to enforce their rules, and had made a determination so to do, as the only mode of having them obeyed.

Motion denied.

Radcliff and Livingston, Justices, absent.