Spector v. Gropper — 129 N.Y.S. 464

Majority

p. 464

SPECTOR et al. v. GROPPER.

(Supreme Court, Appellate Term.

May 22, 1911.)

Headnote

Judgment (§ 143*)—Opening Default—Grounds—Absence of Witnesses.

Where the affidavits in support of a tenant’s motion to open a default judgment in favor of the landlord showed that the tenant’s witnesses were unavoidably detained, and that their absence when the case was called and an adjournment asked was without his fault, the refusal to open the default was erroneous.

[Ed. Note.—For other cases, see Judgment, Dec. Dig. § 143.*]

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

Action by Samuel Spector and another against Abraham M. Cropper. From a judgment denying a motion to open a default and set aside the judgment and final order in favor of plaintiffs, landlords, defendant, a tenant, appeals.

Reversed, judgment and order vacated, and new trial ordered.

Argued before SEABURY, GERARD, and LEHMAN, Jj.

S. C. Sugarman, for appellant.

Gross & Sneudaira, for respondents.

The affidavits presented on behalf of the tenant show that his witnesses were unavoidably detained, and their absence from the courthouse when-the case was called was without fault on their part or the part of the tenant. The answering affidavits are not credible, and I feel that the affiants are mistaken when they state that the witnesses were in the courthouse at the very time that the tenant’s attorney was asking an adjournment on account of their absence.

The order should be reversed, the judgment and final order vacated, and a new trial ordered, with costs to appellant to abide the event. All concur.