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Anderson v. Lazarowitz

142 N.Y.S. 304 Court Argued May term, 1913, before LEHMAN, BIJUR, and WHITAKER, JJ. Decision date 1913-06-17 English

Delivered by BIJUR, J.

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p. 304
ANDERSON et al. v. LAZAROWITZ.
(Supreme Court, Appellate Term, First Department.
June 17, 1913.)

Headnote

Judgment (§ 159*)—Setting Aside Default—Absence of Counsel.
Where the only reason given for opening a default entered for failure of the defendant to appear at the trial was that his attorney, who was engaged in another court, sent his clerk to ask the justice to hold the case until his arrival, and there was no affidavit of the clerk, and ho explanation for its absence, the motion was properly denied.
[Ed. Note.—For other cases, see Judgment, Cent. Dig. §§ 310, 312, 313; Dec. Dig. § 159.*]
Appeal from Municipal Court, Borough of Manhattan, Third District.
Action by Clifford L. Anderson and others against Alfred M. Lazarowitz. From an order denying the motion to set aside a default, defendant appeals. Affirmed, with leave to renew.
Argued May term, 1913, before LEHMAN, BIJUR, and WHITAKER, JJ.
Abraham Vogel, of New York City, for appellant.
Charles M. MacLaren, of New York City, for respondents.

The only reason given for opening the default of the defendant, taken upon his failure to appear at the time the case was set down for trial, is that the defendant’s attorney, who was. engaged in a Brooklyn court, sent his clerk to the courtroom to inform the justice that his employer was on his way there, and to ask that the case be held to await his arrival. It is significant that no affidavit of the clerk was submitted, nor its absence explained. The motion to open the default was properly denied.

Order affirmed, with costs, with leave to defendant to renew the motion, upon payment of the costs of this appeal within five days after service of a copy of the order entered herewith and notice of entry thereof. All concur.