Haven v. Meteer — 23 N.Y.S. 192

Majority

p. 192

HAVEN et al. v. METEER et al.

(Superior Court of New York City,

General Term.

May 1, 1893.)

Headnote

Practice in Civil Cases—Notice.

Where a case is set for trial without objection, in the presence of both parties, and the day is chosen, so that plaintiff may examine defendant before trial, arid the defendant consents to the examination, plaintiff is not entitled to notice of trial from defendant.

Appeal from special term.

Action by Howard A. Haven and another against Samuel G-. Meteer and another. Plaintiffs did not appear on the day set for trial, and on motion of defendants the complaint was dismissed. An order was entered opening the default on condition that plaiutiffs pay costs, and plaintiffs appeal.

Affirmed.

Argued before SEDGWICK, FREEDMAN, and Me AD AM, JJ.

Kellogg, Rose & Smith, (Arthur H. Smith, of counsel,) for appellants.

Leonard Bronner, for respondents.

The appellants’ claim that the defendants had no right to move to dismiss the complaint on the nonappearance of the plaintiffs, because there was no proof of a service of notice of trial by defendants upon plaintiffs. Actual proof was not necessary, nor, indeed, was service. Without objection,, both parties being present, the case was set down for trial, and the day was chosen, so that the plaintiffs might examine the defendants before trial. The defendants gave consent to the examination. This called the defendants into the trial, so that the plaintiffs could not object after-wards that they had had no notice of trial from the defendants. The facts of the case were so peculiar that the discretion of the court below as to costs cannot be reviewed.

Order affirmed, without costs. All concur.