Lang v. Wiesner

Headnote

Judgment—Opening Default.

A judgment against plaintiff by default, after denial of a motion to postpone, will not be opened where plaintiff had been frequently told that de- ■ fendant would insist on trying the case, and he knew, three days before it was reached for trial, that it would be likely to be reached, and that he would be obliged to try 'it, but he made no effort to get his witnesses, though all but one lived in the city where the case was to be tried, and that one lived within three hours’ ride, and the only reason given for the motion to postpone was that he wanted to move for leave to serve a supplemental complaint.

Appeal from special term, Monroe county.

Action by Frederick W. Lang against Joseph Wiesner for slander. The action was commenced by the service of summons and complaint on January 28, 1893. On April 26th following, plaintiff served an amended complaint, and on June 2d a second amended complaint. Issue was joined on June 26, 1893. The case was called for trial December 14, 1894, and plaintiff asked that the cause be postponed. The motion was refused, and defendant’s motion that the complaint be dismissed was granted. On March 16, 1895, plaintiff moved for an order directing that the default be

opened, and that the judgment be set aside, and a trial directed. The motion was denied, and plaintiff appeals. Affirmed.

The opinion of Mr. Justice RUMSEY at special term is as follows:

I can see no reason for opening this default. The plaintiff’s attorney evidently did not intend to try this case at the circuit, although he was advised time and again that the defendant would insist on trying it. He knew, on December 11th, that the case would be likely to be reached, and that he would be obliged to try it; but he made' no effort to get his witnesses, although all but one of them lived in Rochester, and that one lived less than three hours’ ride from there. There was no claim made at the* circuit, where the motion was made to put the case over, that plaintiff had tried to procure his witnesses, but the only excuse given was that he wanted to move for leave to serve a supplemental complaint. He has been guilty of laches even in that motion, so upon the whole I am clear that to open this default would operate to reward gross laches and punish diligence of the defendant in preparing for trial. Motion denied, with $10 costs.