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Stow v. Pearce

9 Paige Ch. 367 Court N.Y. Ch. Decision date 1841-12-07 English

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Majority

p. 367
Stow vs. Pearce.

Headnote

Where a defendant neglected to attend before a master on a reference, in obedience to a summons served upon his solicitor, and showed for cause against the usual order, to attend before the master in four days and to pay the costs of the application, that he was absent from home when the summons was served and had no information of it until after the order to show cause was served; Held, that as the solicitor neglected to appear before the master, to excuse the default of his client and to obtain an adjournment of the hearing, the defendant must pay the costs of the proceedings to compel his personal attendance before the master on the reference.
December 7.
The defendant having neglected to attend before a master, on a reference, under a summons served upon his solicitor, showed for cause against the usual order, to attend before the master in four days and to pay the costs of the application, that he was absent from home when the summons was served on his solicitor, and did not hear thereof until after the order to show cause why he should not be punished for his contempt was served on his solicitor.
Eb. Clark, for the complainant.
D. L. Seymour, for the defendant.

said it was the duty of the solicitor, upon whom the summons was served requiring a personal attendance of his client before the master, to give notice thereof to his client. And if the client, by reason of absence or otherwise, was unable to attend the master upon the return day of the summons, the solicitor should attend, for the purpose of excusing the default of his client and obtaining an adjournment for a reasonable time, to enable the defendant to attend according to the order of the court.

That if the solicitor neglected to attend, upon the return of the summons, and excuse the default of his client, the latter must pay the costs of the proceedings of the adverse party,

p. 368
to compel a compliance with the order requiring the defendant to attend personally before the master on the reference.

Order accordingly.