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Hinz v. Starin

2 Silv. Sup. 505 Court Supreme Court, Second Department, General Term, Decision date 1889-06-28 English

Delivered by Dykman, J.

Contents

Majority

p. 505
John R. Hinz, as Administrator, etc., Appellant, v. John H. Starin, Respondent.
Supreme Court, Second Department, General Term,
June 28, 1889.

Headnote

1. Default. Terms of opening.—The plaintiff, who is regular in his practice in taking a default, should not be required to try the cause upon the printed case, as a condition of an immediate trial.
2. Same.—But in such case, pecuniary terms should be imposed upon the defendant, as a condition for the favor granted him.
Appeal from a judgment entered at special term.
Martin J. Keogh, for appellant.
Wm. W. Goodrich, for respondent.

This is an appeal from an order opening a default and setting aside an inquest taken in this action at the March circuit in Westchester county against the defendant in favor of the plaintiff.

There was a disagreement between the attorneys in relation to the trial of the cause and the counsel for the plaintiff was entirely justifiable and regular in bringing the same on for trial, yet under all the circumstances it was wise to open the default and set aside the inquest upon proper terms.

We do not think, however, that the discretion of the court was wisely exercised in relation to the terms, first because it obliged the counsel for plaintiff who was regular in his practice to try the cause upon the printed case if he went to trial that week. That condition obliged the plaintiff to do what the presiding judge at the circuit could not require him to do when there was nothing in his conduct or condition to justify the imposition of such a condition.

We think, also, that pecuniary terms should have been imposed as a condition for the favor granted to the defendant.

p. 506
The defendant should have been required to pay $100 to the counsel for the plaintiff, thirty dollars trial fee and ten dollars for opposing the motion to open the default and the legal disbursements for the March term of the court. The order should be modified in the respects mentioned, and as so modified affirmed, without costs.

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