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Guthorn v. Multiple Engineering Co.

129 N.Y.S. 399 Court N.Y. App. Term Decision date 1911-05-18 English

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p. 399
GUTHORN v. MULTIPLE ENGINEERING CO.
(Supreme Court, Appellate Term.
May 18, 1911.)

Headnote

Judgment (§ 169*)—Default—Opening—Gbounds—Absence of Witness.
Where, when the case was set for trial, defendant’s counsel, who was a material witness for him, was attending another trial, and it did not appear that defendant was dilatory in bringing the action to trial, a default judgment for plaintiff should be opened upon payment of costs to date by defendant.
[Ed. Note.—For other cases, see Judgment, Cent Dig. §§ 328, 329; Dec. Dig. § 169.*]
Appeal from Municipal Court, Borough of Manhattan, Seventh District.
Action by Seymour Guthorn against the Multiple Engineering Company. From an order denying a motion to open a default, defendant appeals.
Affirmed, as modified.
Argued before SEABURY, GUY, and BIJUR, JJ.
Jos. G. Fenster and Abraham Ellenbogen, for appellant.
Herbert M. Wallace, for respondent.

PER CURIAM.

After several adjournments upon mutual consent, this case was set for trial March 2d. On that date defendant’s counsel, a material witness in the case, was in Troy upon the return of an order to show cause why an important examination before trial in another case should not be vacated.

As it does not appear that the defendant has been dilatory in bringing this action to trial, and it does appear that he had reasonable excuse for his absence, the order appealed from should be modified, to grant the motion to open the default upon payment of costs to date, and, as so modified, affirmed, without costs to either party of this appeal.