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Cohen v. Pasinsky

123 N.Y.S. 979 Court N.Y. App. Term Decision date 1910-06-24 English

Delivered by GUY, J.

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p. 979
COHEN v. PASINSKY.
(Supreme Court, Appellate Term.
June 24, 1910.)

Headnote

Judgment (§ 138[1] )—By Default—Opening Default.
Where a case was adjourned by agreement to December 29th, but by direction of the trial justice it was set down for December 28th, and it appears from the affidavit of defendant’s counsel that he was not notified until the afternoon of December 27th that the case had been set for the 28th, and that it was impossible for him to properly prepare for trial on- the following day, and the affidavit of merits discloses a good defense, and defendant has evidently -acted in good faith, the motion to open the default should be granted.
[Ed. Note.—For other cases, see Judgment, Cent. Dig. §§ 249-254; Dec. Dig. § 138.*]
Appeal from Municipal Court, Borough of Manhattan, Second District.
Action by Abraham Cohen against Henry Pasinsky. From an order overruling a motion to open a default, defendant appeals.
Reversed.
Argued before SEABURY, GUY, and BIJUR, JJ.
Jerome Ullman, for appellant.
Hartman & Levy, for respondent.

This case was adjourned by agreement of counsel to December 29, 1909, but by direction of the trial justice was set down for .the 28th of December. It appears from the affidavit of defendant’s counsel that he was not notified until the afternoon of December 27th, that the case had been set down for trial on the 28th, and that it was impossible for him to then properly prepare for trial on the following

p. 980
day. The affidavit of merits discloses a good defense, if established, and the defendant has evidently acted in good faith throughout. The motion to open the default should have been granted.

The order appealed from should be reversed, and a new trial granted, with costs to appellant to abide the event. All concur.