Reiter v. Miller — 155 N.Y.S. 307

Majority

p. 307

REITER v. MILLER et al.

(Supreme Court, Appellate Term, First Department.

November 3, 1915.)

Headnote

Courts @=189—Municipal Courts—Default—Vacation—Grounds.

Where, at the time a default was taken in the New York Municipal Court, defendants’ attorney was actually and in good faith engaged in trying another case before a justice of the Supreme Court and a jury, the default should be vacated; the proper course being to hold the case until termination of the trial in the Supreme Court.

(Ed. Note.—For other cases, see Courts, Cent. Dig. §§ 404, 1324-1330, 1333— 1341, 1372-1374; Dec. Dig. @=189.]

<g^>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

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

Action by Sophia Reiter against Harris Miller and another. From an order of the Municipal Court, denying defendants’ motion to open their default, they appeal. Order reversed, and default opened.

Argued October term, 1915, before BIJUR, PAGE, and SHEARN, JJ.

Feltenstein & Rosenstein, of New York City (Abraham Rosenstein, of New York City, of counsel), for appellants.

William H. Chorosh, of New York City, for respondent.

It appears without contradiction, and without question of the good faith of defendants or their attorneys, that the latter was, at the time this case was called for trial in the Municipal Court, actually engaged in trying another case before a justice of the Supreme Court and a jury. The latter case had been begun the afternoon before, and was ultimately finished on the day of the default. These circumstances having been adequately presented by a sufficient affidavit, the case should have been held until the termination of the trial in the Court.

Order reversed, and default opened without terms, and without costs of this appeal. All concur.