Kitson v. Blake — 39 N.Y. St. Rep. 45

Majority

p. 45

Thomas Kitson, Resp’t, v. Sarah Frances Blake, App’lt. Thomas Kitson, Resp’t, v. Frederick D. Blake, Impleaded, App’lt.

(Supreme Court, General Term, Second Department,

Filed May 11, 1891.)

Headnote

•Judgment upon an inquest—Grounds for setting aside.

Where a judgment is rendered upon an inquest taken by default, it will not be set aside upon the ground of the enforced absence of the defendants and their attorney at a trial in another city, where it appears that there was ample time to reach the court room before the case was called after the completion of the other trial, and that the attorney's clerk, a lawyer, was present, appeared, announced the defense ready, and then objected to the jury.

Appeal from order of special term, Westchester county, denying motions to set aside inquests.

C. Bainbridge Smith, for app’lts; Carlisle Norwood, Jr., for resp’t.

—These are motions to set aside inquests taken at a •circuit court held in Westchester county.

It is evident from an examination of the papers on this appeal that there was no merit in the defense, and that the whole effort of the defendant was to secure delay.

Not only does it appear that the notes sued upon were given for a valid consideration, but liability had been conceded by the defendant.

If the counsel for the defendant had exercised due diligence, he could have reached the court at White Plains, at the time the case was called for trial. He was represented, however, and what took place must be regarded as a trial.

It does not appear that there was not a legal panel of jurors

p. 46

present to try one ol the cases when called; besides no challenge was made that was sufficient to raise that question.

The plaintiff was no way in fault for the absence of defendant’s witnesses, and no motion was made -to postpone on the ground of absence of witnesses.

In one case there was no appearance at the circuit, and default and inquest were duly taken. Such being the case, it was incumbent in that case to show merits, which was not done.

We do not think there was any irregularity in either case sufficient to warrant the granting of the motions, neither do we think there is any merit in the defense in either action.

Order affirmed, with costs.

Barnard, P. J., concurs.