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Marotta v. Marvullo

160 N.Y.S. 1002 Court Argued October term, 1916, before GUY, BIJ.UR, and SHEARN, JJ. Decision date 1916-10-17 English

Delivered by SHEARN, J.

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p. 1002
MAROTTA v. MARVULLO.
(Supreme Court, Appellate Term, First Department.
October 17, 1916.)

Headnote

Judgment <S=169—Opening Default—Teems—Deceit.
Where defendant’s attorney, after securing consent of plaintiffs attorney to delay, instead of securing adjournment by affidavit, answered “Ready” and procured default, the court should not impose on plaintiff as terms for opening the default, payment of a full bill of costs.
[Ed. Note.—For other cases, see Judgment, Cent. Dig. §§ 328, 329; Dec. Dig. tg=169.]
(gzxoFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes
Appeal from City Court of New York, Special Term.
Action by Fred Marotta against Gaetano Marvullo. From an order imposing payment of full bill of costs as terms on opening of default, plaintiff appeals. Reversed.
Argued October term, 1916, before GUY, BIJ.UR, and SHEARN, JJ.
Samuel W. Altman, of New York City (Abraham Rosenstein, of New York City, of counsel), for appellant.
Julius V. Carabba, of New York City (Adolphus D. Pape, of New York City, of counsel), for respondent.

Plaintiff’s counsel was induced to consent to one week’s adjournment of the trial to enable new counsel for the defendant to familiarize himself with the facts and properly prepare for trial. Instead of filing the affidavit necessary to procure the adjournment, defendant’s counsel, to whom the favor had been extended, answered “Ready,” and procured the dismissal of the complaint on default caused

p. 1003
by the natural inability of plaintiff’s counsel to proceed without witnesses that would have been on hand, but for the representations made by defendant’s counsel. Nevertheless, on opening the default thus brought about by defendant’s counsel, and without any fault on the part of plaintiff’s counsel, the court required the plaintiff to pay a full bill of costs, thus rewarding a method of practice which, unexplained, seemingly merited discipline instead. No terms should have been imposed upon a party that was not only innocent but deceived.

The order, in so far as appealed from, is reversed, with $10 costs and disbursements. All concur.