Howard A. Haven et al., App'lts, v. Samuel G. Meteer et al., Resp'ts.(New York Superior Court, General Term,Headnote
Default—Want of notice of trial.Where the parties have both declared .themselves ready for trial and the case has been set down for a day chosen by plaintiff to enable him to examine the defendant before trial, to which the defendant consented, the plaintiff cannot afterwards object that no notice of trial had been served on him.
Appeal by plaintiffs from order opening default on condition of the payment of forty dollars costs.
The case was on the day calendar for January 23, 1893, and was answered ready on the 24tbü and 25th, but not reached. On the 26th plaintiffs asked that the case be set down for trial on the following day, so as to enable them to examine the defendant Meteer before trial, and was accordingly passed. On said day plaintiffs asked for a postponement, claiming that counsel was engaged in another court, which was denied and a motion was then made to discontinue without costs, which was also denied, and a dismissal ordered.
Arthur H. Smith, for app’lts; Leonard Browner, for resp’ts.
The appelantsclaim that the defendants had no right to move to dismiss the complaint on the non-appearance of the plaintiffs because there was no proof of a service of notice of trial by defendants upon plaintiffs.
Actual proof was not necessary, nor indeed was service. Without objection, both parties being present, the case was set down for trial and "the day was chosen so that the plaintiff might examine the defendant before trial. The defendant gave consent to the examination. This called the defendants into the trial, so that the plaintiffs could not object afterwards that they had no notice of trial from the defendants. The facts of the case were so peculiar that the discretion of the court below as to costs cannot be reviewed.
Order affirmed, without costs.
Sedgwick, Oh. J., Freedman and McAdam, JJ., concur.