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Kraus v. Comet Film Co.

139 N.Y.S. 306 Court Argued November term, 1912, before LEHMAN and PAGE, JJ. Decision date 1913-01-15 English

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p. 306
KRAUS v. COMET FILM CO.
(Supreme Court, Appellate Term, First Department.
January 15, 1913.)

Headnote

Judgment (§ 143[1] )—Opening Default—Excuses—Inexperience of Attorney.
A default, not willfully or intentionally allowed, but attributable to the inexperience of the defendant’s attorney, will be opened on motion, since it is the duty of the courts to protect litigants from the neglect of their attorneys.
[Ed. Note.-—For other cases, see Judgment, Cent Dig. §§ 269-291; Dec. Dig. § 143.*]
Appeal from Municipal Court, Borough of Manhattan, Ninth District.
Action by Maurice Kraus, doing business as the Kraus Manufacturing Company, against the Comet Film Company. From a judgment by default in favor of the plaintiff, and from an order denying defendant’s motion to open the default, defendant appeals. Order reversed, and default opened, upon defendant’s repayment of $10 costs and upon his deposit of the amount of the judgment or his undertaking as provided for by Municipal Court Act, § 256; and appeal from judgment dismissed.
Argued November term, 1912, before LEHMAN and PAGE, JJ.
Robert H. Elder, of New York City (Otho S. Bowling, of New York City, of counsel), for appellant.
Bernard Robinson, of New York City, for respondent.

The default in this case does not seem to have been willfully or intentionally allowed, but was largely attributable to the inexperience of the defendant’s attorney. We have recently held that:

“It is the duty of the courts to protect litigants from the neglect and misconduct of- their attorneys, and not deprive them of an opportunity to be fully and fairly heard where the fault was not their own.” Heiliger v. Ritter, 78 Misc. Rep. 264 , 266, 138 N. Y. Supp. 212 , 214.
p. 307
The order appealed from should be reversed, without costs of this appeal to either party, and the default opened, upon payment by the defendant of $10 costs and the depositing by defendant with the clerk of the Municipal Court of the amount of the judgment, or the giving of an undertaking as provided in section 256 of the Municipal Court Act (Laws 1902, c. 580). Appeal from judgment dismissed.

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