Root v. Goodspeed — 2 N.Y. City Ct. Rep. 173

Majority

p. 173

City Court.

Trial Term

July, 1885.

ROOT against GOODSPEED.

Headnote

The defendant stipulated to try the cause on June 26, or suffer an inquest. He failed to appear on that day, and moved to open the default on the ground that he was out of town on that day, and could not be present. Held, no excuse.

The action was called on the day calendar on June 19, 1885, and was adjourned till the 26th, on condition that defendant gdes on trial on the 26th or consents to an inquest.” This condition was incorporated in a written stipulation signed by the respective attorneys. "On June 26 an inquest was taken. Application is now

p. 174

made to open the default, and the excuse offered is that on the 26 “ the defendant was out of the State on an important business transaction, and that she could not be present at the trial without great financial loss, far exceeding the amount involved in this suit.”

The application to open the default will be denied on two grounds: 1. The written stipulation authorized the inquest. 2. The excuse offered is insufficient. The court “ may relieve a party from a judgment taken against him through his mistake, inadvertence, surprise or excusable neglect” (Code, § 724); but not where he deliberately neglects the opportunity of having his day in court, for business which he regards as of more importance. The true rule is that in legal matters all other business must, be laid- aside, that the party litigant may appear and defend his rights. He must waive either for the other, and may make his choice, but, having made his election,, he must abide by it.

Motion denied, with $10 costs.