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Krasne v. New York Rys. Co.

140 N.Y.S. 355 Court Argued February term, 1913, before SEABURY, GERARD, and BIJUR, JJ. Decision date 1913-03-07 English

Delivered by BIJUR, J.-

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p. 355
KRASNE v. NEW YORK RYS. CO.
(Supreme Court, Appellate Term, First Department.
March 7, 1913.)

Headnote

Judgment (§ 143[1] )—Default—Vacating Judgment.
Where an action was dismissed because on' the day set for trial the plaintiff’s attorney, having suffered an “unforeseen delay,” was 10 minutes late, but the plaintiff and his witnesses were on time, the court
p. 356
erred In not granting plaintiff’s motion to vacate the default and open the judgment.
[Ed. Note.—Eor other cases, see Judgment, Cent. Dig. §§ 269, 270, 272-291; Dec. Dig. § 143.[1] ]
Appeal from Municipal Court, Borough of Manhattan, Fifth District.
Action by Louis Krasne against the New York Railways Company. Judgment for defendant by default. From an order denying a motion to vacate the judgment, the plaintiff appeals. Reversed.
Argued February term, 1913, before SEABURY, GERARD, and BIJUR, JJ.
Barnett E. Kopelman, of New York City, for appellant.
James L. Quackenbush, of New York City (Henry F. Gannon, of New York City, of counsel), for respondent.

It appears by the affidavit of the plaintiff’s attorney that on the day set for trial the case was called at 9 o’clock in the-morning. Plaintiff was present in person with his witnesses. His attorney, however, suffered an “unforeseen delay” and did not reach the courtroom until 10 minutes later.

Under these circumstances, I think the default should have been opened and the judgment of dismissal vacated, as is hereby directed, upon payment by plaintiff to defendant of the costs of the action to date, but with costs of this appeal to abide the event. All concur.