Clute v. Mahon — 58 N.Y. Super. Ct. 568

Majority

p. 568

THOMAS J. CLUTE, Appellant v. RICHARD MAHON, et al., Respondents.

Headnote

Opening default taken for non-appearance on call of calendar, insufficiency of affidavits.

Before Sedgwick, Ch. J., Freedman and O’Gorman, JJ.

Decided May 5, 1890.

Appeal by plaintiff from an order denying his motion to open a default.

T. J. Clute, for appellant.

John Hardy, for respondents.

It does not appear that the judge, in denying plaintiff’s motion below, did not exercise properly the discretion he was bound to use upon such a motion. The plaintiff, who was an attorney, left the court room a short time before the case was called, “ leaving some one in attendance at court to answer should the case be called during his, deponent’s, absence.” The plaintiff, was absent from court about fifteen minutes, and “ upon his'return he learned that his case was dismissed on motion of defendants’ attorney.” This does not show any excuse. It is vague. It does not assert even that the plaintiff was ready and intended to go to trial. It

p. 569

does not give the name of plaintiff’s representative in his absence and show what that representative did or the immediate circumstances of the dismissal .of the complaint.

The order should be affirmed, with costs.