Majority
p. 874ROBERT McCORMICK, App’lt, v. RANDALL STIVERS, Resp’t.
Headnote
Pbactice—Setting aside judgment taken by default. ■This is an appeal from an order made at special term held in Orange county on the 16th day of July, 1887, vacating and setting aside a judgment taken by default in favor of appellant on the 9th day of June, 1887, for the sum of $8,805.66.
Justus Palmer, for app’lt; W. F. O'Neill, for resp’t.
The allegation in the moving affidavit that defendant’s attorney, not being able to find the cause upon the printed calendar, wrote to plaintiff’s attorney in reference thereto, offering to attend and try the cause upon a day to be fixed, and that he received no response to his letter, is not in any way controverted or explained. Taken in connection with the other facts, it shows that defendant's attorney was not guilty of any negligence. The expenses of trial were caused by failure of plaintiff’s attorney to comply with the reasonable
p. 875
suggestion of defendant’s attorney, and by allowing him to continue in the belief that the cause would not be moved during that term.
The order appealed from should be affirmed, but without costs.
Barnard, P. J., and Dykman, J., concur.