Scheckter v. Reiter — 113 N.Y.S. 729

Majority

p. 729

SCHECKTER v. REITER.

(Supreme Court, Appellate Term.

December 16, 1908.)

Headnote

Judgment (§ 92*)—Default—Vacation.

“Where after defendant’s request for an adjournment was denied, he remained in court and took part in the trial, by interposing objections to questions and cross-examining witnesses, there was no default, and his motion to open the judgment as a default judgment was properly denied.

[Ed. Note.—For other cases, see Judgment, Cent. Dig. § 151; Dec. Dig. § 92.*]

Appeal from Municipal Court, Borough of Manhattan, Eighth District.

p. 730

Action by Frossie Scheckter against Julius H. Reiter. From a judgment for plaintiff, and from an order denying defendant’s motion to open his default, he appeals.

Affirmed.

Argued before GIEGERICH, HENDRICK, and FORD, JJ.

Myron S. Yochelson, for appellant.

William F. Unger, for respondent.

Both the judgment and order must be affirmed. The motion was properly denied, for the reason that there was no default. Upon the day set "for trial the defendant applied for an adjournment. He states in his brief that an affidavit setting forth the grounds of his request was filed; but no such affidavit appears in the return, and we are therefore unable to determine whether or not such application should have been granted. When his request for an adjournment was denied, he remained in court and took part in the trial, by interposing objections to questions and cross-examining witnesses. It cannot, therefore, be claimed that there was a default. An examination of the testimony shows that the plaintiff proved a cause of action against the defendant for the amount of the judgment rendered.

Judgment affirmed, with costs.