Majority
p. 236MILLER v. MAYER. (Supreme Court, Appellate Term, First Department. January 7, 1915.) Argued December term, 1914, before GUY, BIJUR, and PAGE, JJ.
Headnote
Continuance (§ 20[1] ) — Grounds — Engagement or Counsel in Another Court.Where, when defendant’s case was called for trial, an affidavit was presented to the trial judge that defendant’s attorney was then engaged in the trial of a case in the Court of General Sessions, defendant was entitled to an adjournment to await the release of his counsel, and a default entered notwithstanding such affidavit was without justification.
[Ed. Note. — For other cases, see Continuance, Cent. Dig. §§ 51, 53-57; Dec. Dig. § 20.*]
Appeal from Municipal Court, Borough of Manhattan, Ninth District.
Action by Marcus A. Miller against Sam Mayer. From a Municipal Court order denying a motion to open defendant’s default, except on payment of $10 costs and the deposit in court of the amount sued for, he appeals.
Modified.
Isidor Cohn, of New York City, for appellant.
Lorence & Harkavy, of New York City (Louis Lorence and Ira Wollison, both of New York City, of counsel), for respondent.
It appears from the record, and is not denied by plaintiff, that when this case was called for trial an affidavit was presented to the trial judge showing that defendant’s attorney was then engaged in the trial of a case in the Court of General Sessions. As defendant was thereupon entitled to an adjournment of his case to await the release of his counsel from that engagement, the default was taken without justification.
Order opening default modified, so as to provide that the motion is granted without terms, and without costs of motion, and, as modified, affirmed. Judgment vacated, and new trial ordered, with costs to appellant to abide the event. All concur.