Kitson v. Blake — 14 N.Y.S. 446

Majority

p. 446

Kitson v. Blake. Same v. Blake et al.

(Supreme Court, General Term, Second Department.

May 11, 1891.)

Headnote

Judgment by Default—Setting Aside.

A judgment upon an inquest taken by default will not be set aside upon the motion of defendants, upon the ground of their enforced absence, and that of their attorney, at the trial of an action, in an adjacent city, where it appears that there was ample time for said attorney and defendants to reach the court before the calling of such case, after the close of said trial elsewhere, and that the managing clerk of defendants’ attorney, himself a lawyer, was present at the session of such court on the day of trial, and, instead of notifying defendants of the impending trial, waited until the case was called, announced that the defense was ready for trial, and then objected to the constitution of the jury.

Appeal from special term, Westchester county.

Actions by Thomas Kitson—one against Sarah Frances Blake, and the other against Frederick D. Blake and Charles Waterman—on promissory notes executed by the defendants. The defendants in each case appeal from an order denying their motions to set aside the inquests, and judgments

p. 447

therein taken by default. The principal ground of the motions in the court jb’elow was the alleged inability of the defendants’ attorney to be present on .the day when the verdict was taken. He alleged that he was the,n engaged ¡in^, trial in New York city, at which defendants, his clients, were present, (which ended shortly after 8 o’clock in the afternoon, after which it appeared ^hac.there was ample time and opportunity to reach White Plains, the place .of trial of these actions, before the case was called at a quarter past 5 o’clock .of tlie'same afternoon. The managing clerk of defendants’ attorney, himself .a,lawyer, was present at the session of the court at White Plains, and could have telephoned to the defendants to attend the.impending trial; but instead of doing so waited until the case was called, declared defendants ready for trial, and then objected to the constitution of the jury; which objection was overruled, and a judgment entered upon the inquest.

Argued before Barnard, P. J., and Pratt, J.

C. Bainbridge Smith, for appellants. Carlisle Norwood, for respondents.

These are motions to set aside inquests taken at a circuit court ■field in Westchester county. It is evident, from an examination of the pampers on this appeal, that there was no merit in the defense, and that the whole ¡.effort of the defendant was to secure delay. Hot only does it appear that the fnotes sued'.'úpon were, given for a valid consideration, but liability had been .conceded by the defendant. If the counsel for the defendant had exercised .due diligence,' he could have reached the court at White Plains at the time the case was called for trial. He was represented, however, and what took place must be regarded as a trial. It does not appear that there was not a ¡legal panel of jurors present to try one of the cases when called; besides, no challenge'was made that was sufficient to raise that question. The plaintiff was no .way in fault for the absence of defendants’ witnesses, and no motion was m.ade to postpone on the ground, of absence of witnesses. In one ¡ case thqre 'was no appearance at the circuit, and default and inquest were duly takén. Such being the case, it was incumbent in that case to show merits, which was not done. We do not think there was any irregularity in either case sufficient to warrant the granting of the motions; neither do we /.think there is ."any merit in the defense in either action. Order affirmed, with costs.