Ferris v. Fisher — 45 N.Y. St. Rep. 631

Majority

p. 631

Catherine C. Ferris, Resp’t, v. Mary C. D. Fisher, App’lt.

(.Supreme Court, General Term,, Second Department,

Filed May 9, 1892.)

Headnote

Trial—Adjourhmeut.

When the case was called defendant was not ready and moved to p.:t the case over the term, but the motion was denied, as no ca-e was made for it, but an adjournment for a week was granted on suggestion of settlement. On the adjourned day one of defendant’s counsel stated that his associate was engaged elsewhere and asked that the case go over the term, and refused to consent to an adjournment during the term. The absence of no witnesses was shown. Counsel had tried another case between the parties involving the same questions. Held, that the application to put over the term was without merit and to secure delay, and that it was properly denied.

Appeal from order denying motion to open a default.

M. J. Keogh and L. 0. & W. P. Platt, for app’lt; Wilson Brown, for resp’t.

This is an appeal from an order denying a mo

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tian to open a default taken against the defendant at the circuit court in Westchester county on the 12th day of October, 1891.

From the affidavits used on the motion we collect the following facts:

The action is brought for the partition or sale of real property, and was upon the calendar of causes to be tried at the circuit in Westchester county which commenced on the first Monday of October, 1891, which was the 5th day of the month.

When the cause was called on the first day of the court the defendant was not ready, but presented no legal excuse for her failure to prepare and be in readiness for the trial.

The application to postpone the trial until the next term of the circuit was denied because no case was made for such adjournment.

Upon a statement that all the witnesses were in the immediate vicinity of the court-house, the cause was set down for trial at two o’clock that afternoon.

When the court assembled at two o’clock there was a suggestion that the parties would settle the case amicably between themselves and an adjournment was taken for one week, until the following Monday, the 12th day of October.

On the 12th one of the counsel for the defendant appeared in court and stated that his associate was engaged in Hew York city; that no settlement had been concluded, and asked to have the cause go over the circuit.

Thereupon the trial judge stated that it was apparent that no effort had been made to prepare for the trial, but if they had been embarrassed by the negotiations for a settlement hp would postpone the trial for one week to afford the defendant an opportunity to procure the attendance of thoir witnesses, and prepare for the trial.

Thereupon the counsel stated that his application was to postpone until the next term and he did not desire an adjournment during the term, and when the trial judge inquired of him if the defendant declined to take, any day during the term if the day he proposed was inconvenient, he answered in the affirmative and desired to file his affidavit, and declined to consent to any adjournment during the term.

He then stated the contents of his affidavit, and as they contained no reason for the adjournment beyond what had been offered the application was denied, and the cause was tried on an inquest, and judgment was rendered in favor of the plaintiff.

It appears further that the counsel for the defendant have tried another action between these parties involving the same questions as those to be determined in this case, and have been engaged before the surrogate in a controversy over the same will which the plaintiff here claims to be invalid, so that they are familiar with the case and require no time for preparation.

They subpoenaed no witnesses and made no pretense that any were absent or beyond their reach or unable to attend, or that there were any whose attendance they could not procure. Their

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application for an adjournment until the next term was plainly without merit and made to secure delay, and their professions of inability to proceed with the trial were insincere and destitute of good faith.

The motion to open the default was properly denied, and the order should be affirmed, with ten dollars costs and disbursements, to be deducted by the referee and paid out of the portion of the defendants of the proceeds of the sales of the property involved in this action.

Pratt, J., concurs; Barnard, P. J., not sitting.