Clute v. Mahon — 9 N.Y.S. 713

Majority

p. 713

Clute v. Mahon et al.

(Superior Court of New York City, General Term.

May 5, 1890.)

Headnote

Judgment—By Default—Reopening.

An order denying a motion to open a default will not be disturbed where the moving papers merely show that plaintiff, who was an attorney, left the court-room a short time before the case was called, leaving “some one” in attendance to answer should the case be called, and that plaintiff was absent about 15 minutes, and “upon his return he learned that his case was dismissed on motion of defendant’s attorney, ” and it is not even asserted that plaintiff was ready and intended to go to trial.

Appeal from special term.

Action by Thomas J. Clute against Richard Mahon and another. Plaintiff appeals from an order denying his motion to open a default.

Argued before Sedgwick, C. J., and Freedman and O’Gorman, JJ.

Thomas J. Clute, pro se. John Hardy, for respondents.

It does not appear that the judge, in denying plaintiff’s motion below, did not exercise properly the discretion he was bound to use upon such a motion. The plaintiff, who was an attorney, left the court-room a short time before the case was called, “leaving some one in attendance at ■court to answer should the case be called during his [deponent’s] absence.” The plaintiff was absent from court about 15 minutes, and “upon his return he learned that his case was dismissed on motion of defendants’ attorney. ” This does not show any excuse. It is vague. It does not assert even that the plaintiff was ready and intended to go to trial. It does not give the name of plaintiff’s representative in his absence, and show what that representative did, or the immediate circumstances of the dismissal of the complaint. The order should be affirmed, with costs. All concur.