Loehr v. Brooklyn Ferry Co. — 101 N.Y.S. 209

Majority

p. 209

LOEHR v. BROOKLYN FERRY CO.

(Supreme Court, Appellate Division, Second Department.

November 21, 1906.)

Headnote

1. Continuance—Grounds—Calendar Practice.

Where a cause appears on the reserve section of the day calendar and is marked “Ready,” and moves up to the ready section of the day calendar, excuses for postponement of the trial are too late, except such as arise after the ready section is reached.

p. 210

2. Same-.

A cause had been placed on the ready section of the day calendar. Defendant was ready with witnesses and counsel. Both sides had1 answered “Beady.” On the following day, when the cause was reached for trial, plaintiff’s attorney stated that he had not had sufficient time to prepare for trial. Held, that the court had no authority against the objection of defendant to put the cause off and set it down for trial on a subsequent date.

[Ed. Note.—For cases in point, see Cent Dig. vol. 10, Continuance, § 14.]

3. Judgment—Default—Setting Aside—Ground.

A cause was placed on the reserve section of the day calendar and both parties "answered “Beady.” On the following day it was on the ready section. An affidavit was then presented on plaintiff’s side, averring that a certain attorney was to try the case and the court was requested to pass the cause for the day. No excuse was given. The trial judge dismissed the complaint on plaintiff refusing to go on with the trial. Held, that a motion to open the default on the ground that the office clerk of plaintiff’s attorney did not think the case would be reached for trial that day was properly denied.

[Ed. Note.—For cases, in point, see Cent. Dig. vol. 30, Judgment, § 282.]

Woodward and Bich, JJ., dissenting.

Appeal from Special Term, Kings County.

Action by Annie Loehr, as administratrix of Frank Leohr, deceased, against the Brooklyn Ferry Company. From an order granting a motion to open a default judgment dismissing the action, defendant appeals. Reversed, and motion denied.

Argued before HIRSCHBERG, P. J., and WOODWARD, GAY-NOR, RICH, and MILLER, JJ.

John J. Kirby, for appellant.

Charles H. Levy, for respondent.

The cause being reached for trial in the Kings Trial' Term the plaintiff would not proceed with the trial, and the complaint was dismissed. The default, if it may be so designated, should not have been opened.

The action is for damages for alleged negligence by which the plaintiff’s decedent was killed. It was begun in April, 1903. It was reached on the regular Friday advance call of the general calendar to ascertain what causes are to be tried in the ensuing month, and the plaintiff answered ready. It then came on the day calendar on April 20th, 1904, but was marked off at the request of the plaintiff. It was then allowed to rest until April, 1905, when the plaintiff gave the required notice of five days under the calendar rules setting it down for trial. On May 11th it appeared on the reserve section of the day calendar pursuant to such notice, and was answered ready for trial by both sides. This section of the calendar is called to ascertain what causes are ready and to hear any excuses or requests for postponement. The causes marked ready thereon then move up to the ready section of the day calendar next day or as soon as may be in the dispatch of business, and have to be tried. The time for excuses is passed, except such excuses as arise after the ready section is reached. The system is established by calendar rules. Burkart v. Johnson, 43 Misc. Rep. 419 , 89 N. Y. Supp. 479 ; Herbert Land Co. v. Lorenzen, 113 App. Div. 802 ,

p. 211

99 N. Y. Supp. 937 ; Iron Clad Mfg. Co. v. Steffen (Sup.) 100 N. Y. Supp. 196 . This cause then came on the ready section of the day calendar, and was still there on May 15th. The defendant was ready, with fifteen witnesses and also with counsel specially retained to try the case. Both sides again answered ready, as they had done right along. Next day the cause was still on the day calendar, and when reached for trial the plaintiff’s attorney stated to the court that he had not had sufficient time to prepare and was not ready—this notwithstanding that he had answered ready on May 11th and each day thereafter to May 16th. Nevertheless, and without any affidavit being submitted as the calendar rules require, and against the objection of defendant’s counsel, the trial judge put the cause off and set it down for trial on October 5th. No excuse whatever was given by plaintiff’s attorney; he simply said he had not had time enough, although the action had been pending for over two years, and he had answered ready on May 11th, and thereafter until May 16th. He had been substituted as plaintiff’s attorney six months before. The putting of the cause off until October was a plain injustice to the defendant, and contrary to the rules. The side that accepts and conforms to the rules of court, and is diligent and respectful, is entitled to the protection of the court. It should not be made the victim of the other side’s refusal to observe rules, and its lack of diligence and respect for the administration of justice.

The cause again appeared on the reserve section of the day calendar on October 5th, and was answered ready by both sides. Next day it was on the ready section. An affidavit was then presented on the plaintiff’s side that Mr. Davis was to try the cause, and the court was requested to pass the cause for the day. No excuse for passing the cause was given. The trial judge marked the cause ready, and dismissed the complaint on the plaintiff refusing to go on with the cause. The excuse given on the motion to open the default is that the case was so far down on the list that the office clerk of plaintiff’s attorney did not think it would be reached for trial that day. This cannot be taken as an excuse. It is for the trial judge to control the calendar, and not attorneys and clerks. It is impossible for a judge who calls the day calendar to keep the several parts of court supplied with work unless the calendar rules are observed, and they should be observed.

Finally, the plaintiff waited for over seven months before making the motion to open the default.

The order should be reversed and the motion denied.

Order reversed, with $10 costs and disbursements, and motion denied, with costs. All concur, except WOODWARD and RICH, JJ., who dissent

Cases cited

Burkart v. Johnson 43 Misc. Rep. 419 N.Y. Sup. Ct. p. 210