Trunk v. Howard Laundry Co. , 107 N.Y.S. 66 ( 1907 )

Per Curiam.

These proceedings were instituted by the landlords to dispossess the tenant, upon the ground that it is a monthly tenant and that it held over without permission, after the expiration of its term. The precept was returnable at three p. m. of April 1, 1907; -and, there being no justice present at that time, the clerk adjourned the trial until nine a. m. of April second. When the case was called on that day one Donnellan, an attorney, appeared in behalf of the attorney for the tenant, and asked that the trial be adjourned until April third to enable the defendant to prepare for the same, and also for the reason that the attorney for the defendant was anxious to attend the funeral of the vice-president of the club of which he, said attorney, was a member. This request was denied and the tenant was directed to file an answer. A verified answer was then drawn up by Donnellan, and sworn to by the treasurer of the defendant, denying the allegations of the petition and averring that, by the terms of the lease, the defendant was a tenant from year to year; the term not expiring until May 1, 1907. This answer was filed; and, when the case was called again at three fifteen p. m., Donnellan made a second application for a postponement until nine a. m. of the following day, so that the defendant could be represented by its attorney and a hearing then had upon the merits. This application was refused and an inquest was taken; a warrant at once, on April second at about three forty-five p. m., issued to a marshal who immediately placed the landlords in possession of the premises. The foregoing facts appear in the moving papers on the motion to open the tenant’s default and are not substantially dispxxted. That motion was denied and, from the order denying the same, this appeal was taken. While, perhaps, the reason given, that the tenant’s attorney desired to attend the funeral of a fellow member of his club on practically the return day of the precept, was not a legal excuse for delaying the trial, we think that, xinder the circumstances, the request for an adjoxirament for a single day to prepare for trial should have been granted. The tenant had interposed a verified answer setting up facts which, if true, would have entitled it to possession of the property from which it was sought to be removed. It had a right to a reasonable time in which to prepare to meet the issues presented by the pleadings; and the request for an adjournment of one day was not unreasonable, as less time would hardly have sufficed. It is almost the universal practice upon the return day of process to grant an adjournment without any substantial reason being given, and almost as a matter of course; in brief, the unseemly haste to rush this proceeding should not be countenanced.

The order appealed from is reversed, the default of the tenant opened, and a new trial ordered, with costs to abide the event.

Present: Gildeesleeve, Leventeitt and Eelangee, JJ.

Order reversed, default of tenant opened, and new trial ordered, with costs to abide event.