Mason v. Mason — 47 N.Y. St. Rep. 361

Majority

p. 361

Sumner A. Mason, App’lt, v. Emma J. Mason, Resp’t.

(Supreme Court, General Term, Second Department,

Filed July 22, 1892.)

Headnote

Ejectment—Default.

In an action of ejectment, defendant took judgment by default. On motion to open the same, the affidavits showed a persistent effort by defendant to bring the action to trial, and' an equally persistent effort to avoid it by plaintiff; that although plaintiff’s counsel was absent at another court, his representative stated that when discharged from attendance he would not be able to try the case. Held, that the motion to open the default was properly denied: that such denial would not preclude plaintiff from enforcing any cause of action he might have, as he was entitled to a new trial on payment of costs, and that such denial was equivalent to granting the motion on payment of the costs. •

Appeal from order denying motion to open a default taken by defendant.

W. C. Beecher, for app’lt; Alexander Cameron, for resp’t.

—This is an appeal from an order denying a motion to open a default taken by the defendant at circuit"

The judgment entered will not preclude the plaintiff from enforcing any cause of action he may have. A dismissal of the complaint by default or nonsuit after evidence in an action at law is no bar to a new action for the same cause. Wheeler v. Ruck man, 51 N. Y., 391 . If it were otherwise, the action being in ejectment, the plaintiff is entitled to a second trial as a matter of right, on payment of the costs of the action. The effect of the order appealed from is, therefore, the same as if the motion had been granted upon payment of all the costs in the action.

The imposition of such terms was entirely proper. The affidavits of the defendant show a long and persistent effort on her part to force the cause to trial, and an equally persistent struggle on the part of the plaintiff to avoid a trial. The fact that on the particular day upon which the default was taken the counsel for plaintiff was in attendance at another court is not decisive of his right to a postponement. His representative stated at circuit that even when discharged from attendance under the subpoena, the counsel would not be able to try the cause. After such a statement it was not necessary or proper to hold the cause until another day.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Barnard, P. J., and Dykman, J., concur.