Brady v. Martin — 33 N.Y. St. Rep. 425

Majority

p. 425

Ann Brady, Appl’t, v. Nicholas Martin, Resp’t.

(City Court of New York,

General Term,

Filed October 10, 1890.)

Headnote

1. Default—Dismissal by—When notice of trial not necessary.

Where the trial of an action is- adjourned from time to time by

p. 426

consent, such consents are in the nature of stipulations to try the cause on th'e adjourned day, and upon such day the defendant may take a dismissal by default although he has not served a notice of trial.

2. Same.

Where, however, an arrangement was made with the clerk of defendant’s attorney that neither side should take a default, such default will be opened.

The action was commenced in October, 1887, and was placed on the calendar by the plaintiff. The plaintiff noticed the case for trial; the defendant did not. The plaintiff’s attorney swears that the action was on the day calendar at least twenty times, and was on all these occasions adjourned at the defendant’s request. The defendant’s attorney swears that he never asked an adjournment except on two occasions when he was engaged in another court. The plaintiff’s attorney swears that he agreed with the clerk of the defendant that no default should be taken by either party; but the defendant’s attorney denies all knowledge of this arrangement. The action was reached on the calendar September 8, 1890, and was dismissed by default, the plaintiff failing to appear. The plaintiff moved to set aside the default, and the dismissal was opened on payment of fifteen dollars costs.

FF. FT. Browne, for appl’t; J. F. Swanion, for resp’t.

We recognize the statutory requirement that either party desiring to bring a cause to trial must serve notice thereof, and this provision was followed by the plaintiff, who duly noticed the cause. The parties appeared in court on the call of the calendar, and the cause was evidently adjourned from time to time, by consent, for trial. The defendant was called upon to protect himself on the different occasions when the action was called, and on the failure of plaintiff to appear on September 8, the complaint was dismissed. We think the defendant was regular in his practice. The supreme court held in Jones v. Anderson, 5 Week. Dig., 422, that a stipulation entered into between ’attorneys to set a cause down for trial for a day certain binds each party to it, without regard to the previous notice of trial, and that a default taken in such a case should be opened only on terms. See also Smith v. Grant, 11 Civ. Pro., 354; Townsend v. Keenan, 2 Hilt., 544. The consents to adjourn were in the nature of a stipulation to try the cause on the adjourned day. In Dart v. Soloman, 5 N. Y. State Rep., 911, no notice of trial was served by either party, and there was no waiver. That case is, therefore, inapplicable.

The plaintiff’s attorney claims to have made an arrangement with the clerk of the defendant’s attorney that neither side should take a default, thereby conceding the right of the defendant to take one in case of the failure of the plaintiff to appear.

The defendant’s attorney swears that he had no knowledge of the arrangement, but no affidavit is presented denying the fact that one was made in fact.

For this reason the order appealed from will be modified by opening the default and restoring the case to the calendar, without costs, and as modified the order will be affirmed, without costs.

Ehrlich and Yah Wyck, JJ., concur.