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Alexander v. Costello

114 N.Y.S. 799 Court N.Y. App. Term Decision date 1909-02-05 English

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p. 799
ALEXANDER v. COSTELLO.
(Supreme Court, Appellate Term.
February 5, 1909.)

Headnote

Dismissal and Nonsuit (§ 81[1] )—Setting Aside.
A judgment of dismissal, entered for defendant by default, plaintiff's attorney having withdrawn from the trial, will not be opened, where plaintiff’s attorney failed to present a legal excuse for his withdrawal; the complaint not having been dismissed upon the merits.
[Ed. Note.—For other cases, see Dismissal and Nonsuit, Cent. Dig. § 186 ; Dec. Dig. § 81.*]
Appeal from Municipal Court, Borough of Manhattan, Fifth District.
Action by Harry Alexander against Mary A. Costello. From a judgment and order dismissing the complaint, plaintiff appeals. Affirmed.
Argued before GILDERSLEEVE, P. J., and GIEGERICH and SEABURY, JJ.
Herman B. Goodstein, for appellant.
Eawrence E. Brown, for respondent.

This is an appeal' from a judgment rendered in favor of the defendant dismissing the complaint, and from an order

p. 800
denying the plaintiff’s motion to open his alleged default. As the plaintiff’s attorney failed to present a legal excuse for withdrawing, from the trial, and in view of the fact that the complaint was not dismissed upon the merits, the judgment and order appealed from are affirmed, with costs. All concur.