Prever Goldring Lumber Co. v. Ravitch — 144 N.Y.S. 552

Majority

p. 552

PREVER GOLDRING LUMBER CO. v. RAVITCH.

(Supreme Court, Appellate Term, First Department.

December 11, 1913.)

Headnote

Continuance (§ 16^[1] )—Grounds.

Where defendant procured a commission to be taken, and when the case was called requested an adjournment on the ground that the commission had not been returned, when as a matter of fact it had been returned only that morning, a continuance, should have been granted.

[Ed. Note.—For other cases, see Continuance, Cent. Dig. §§ 38, 39; Dec. Dig. § 16.*]

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

Action by the Prever Goldring Lumber Company against Bella Ravitch, doing business under the assumed name of A. Cohen. From "a judgment in favor of plaintiff upon an inquest, and from an order denying a motion to open the default, defendant, appeals.

Dismissed.

Argued November term, 1913, before LEHMAN, PAGE, and WHITAKER, JJ.

Anna Moscowitz, of New York City, for appellant.

Leo Lerner, of New York City, for respondent.

The defendant in the case procured a commission to be taken. When the case was called on June 18th, the defendant requested an adjournment on the ground that the commission had not yet been returned. The trial justice stated that the commission had been returned two days before, and referred to an indorsement on the commission as showing that the commission had been returned on June 16th. As a matter of fact, the commission had been returned only that morning, and the indorsement so stated. This fact, in connection with the other circumstances in the case, justified the defendant’s attorney in expecting a reasonable postponement, and no default should have been taken.

Order reversed, with costs, and motion to open default granted. Appeal from judgment dismissed. All concur.