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People v. Felstein

147 N.Y.S. 819 Court Argued May term, 1914, before GUY, BIJUR, and PENDLETON, JJ. Decision date 1914-05-21 English

Delivered by BIJUR, J.

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p. 819
PEOPLE v. FELSTEIN.
(Supreme Court, Appellate Term, First Department.
May 21, 1914.)

Headnote

Judgment (§ 143[1] )—Default—Setting Aside.
A default judgment in the Municipal Court, incurred in the absence of defendant’s counsel because of engagements on the day calendar of the Appellate Division, as fully explained, and excused by an adequate affidavit presented to the trial justice, will be set aside.
[Ed. Note.—For other cases, see Judgment, Cent. Dig. §§ 269, 270, 272-291; Dec. Dig. § 143.*]
Appeal from Municipal Court, Borough of Manhattan, Ninth District.
Action by the People of the State of New York against Meyer Felstein. Motion to open a default denied, and defendant appeals.
Reversed, and motion granted.
Argued May term, 1914, before GUY, BIJUR, and PENDLETON, JJ.
Abraham H. Sarasohn, of New York City, for appellant.
Thomas Carmody, Atty. Gen., for the People.

It appearing without contradiction that the default was incurred, owing to the absence of defendant’s counsel, because of two engagements on the day calendar of the Appellate Division, and that such absence was fully explained and sufficiently excused by an adequate affidavit presented to the trial justice, who permitted default to be taken, the order appealed from is reversed, with costs of this appeal, and the motion to open the default granted. All concur.