Randall v. United Life & Accident Insurance — 39 N.Y. St. Rep. 155

Majority

p. 155

George R. Randall, Resp’t, v. United Life and Accident Insurance Association, App’lt.

(New York Superior Court, General Term,

Filed May 4, 1891.)

Headnote

1. Postponement of trial on day calendar—Ground.

A vague and insufficient certificate of a physician, not verified, that defendant’s counsel was ill is no ground for the postponement of a trial, when the cause had been on the day calendar for several days.

2. Opening default and inquest—Grounds.

A motion to open a default and inquest is properly denied when it does not appear that there was any defense to the action to go to a jury, or, at best, but slight ground that if there were a trial the defendant would recover or materially lessen the damages recovered on the inquest.

Appeal by defendant from an order denying defendant’s motion, at the trial term, to postpone the trial, from an order denying defendant’s motion to open the default and inquest taken and from an order denying defendant’s motion for a re-argument of the last motion.

Harry Wilber, for app’lt; Samuel H. Randall, for resp’t.

—The action of the judge at trial term, in refusing defendant’s application for an adjournment, should not be reversed. The case had been on the day calendar for several days and when it was called for trial there was no reason given for postponement excepting a vague and insufficient certificate of a physician that the defendant’s counsel was ill. This was rightly disregarded as it was not verified.

The judge rightly exercised discretion in refusing to open the default and inquest. Several reasons might be adduced. The principal one was that it did not appear that there was any defense to the action to go to a jury. There was the same kind of defect in the motion for re-argument. On that motion, the only support of defense, that was offered was a statement in an affidavit that a resident of another state would testify that he was a physician and looked at the plaintiff for the purpose of seeing if he were injured and did not see any marks of hurt. This was but slight ground for a belief that if there were a trial the defendant would recover or would materially lessen the damages recovered on the inquest.

The orders are affirmed, with ten dollars costs.

Sedgwick, Ch. J., and McAdam, J., concur