Anthony v. United Machine & Supply Co. ( 1910 )

LEHMAN, J.

The plaintiff’s attorney on October 21, 1909, found himself in the unpleasant predicament of having cases on the calendars of the City Court and of the Supreme Court, which he was ready to try except for the physical impossibility of being in two places at the same time. At 2 o’clock he was in the Supreme Court with his witnesses ready to have his case called, and at the same hour he was represented in the City Court by his assistant. It is not quite clear what occurred in the City Court at that time, but apparently this case was called, and the justice directed the trial to proceed in spite of the fact that the attorney was at that time waiting in the Supreme Court.

It seems to us that the trial justice was technically correct in that direction. The rules of the court require proof by affidavit that .counsel is actually engaged in trial in another court before the case could be passed. The trial justice did, however, give the attorney’s assistant the opportunity to go to the Supreme Court and direct the attorney to appear in his court to try this case. When the attorney was informed of this, he asked the justice sitting in the Supreme Court to be allowed to go to the City Court; but that justice directed him to tell the justice of the City Court that for the purposes of the City Court engagements he was on trial before him, that he assigned him to his part, and would hear the case as soon as he had disposed of the case now on trial. While counsel must be deemed to have been actually engaged in trial in the City Court from the moment that the justice had ordered his case to proceed, and thereafter no justice, under the rules of the Supreme Court or of the City Court, would insist upon his beginning a new trial before him in a case not theretofore assigned to a part for trial (Fiesel v. White Machine Co. [App. Div., 1st Dept., Oct., 1909] 119 N. Y. Supp. 67, Cebrelli v. Bradley, 65 Misc. Rep. 59, 119 N. Y. Supp. 255), nevertheless it is possible that there were circumstances not disclosed by the record that justified the Supreme Court justice in regarding the trial before him as already begun, and constituted a valid excuse under the rules in the City Court. We need not, however, determine this question here, because counsel apparently relied upon a mere statement of the facts, and no proof by affidavit was presented to the justice of the City Court that he was engaged in trial in another court. The justice thereupon dismissed the case at 3:25 p. m., upon the express ground that no affidavit was presented to the court of the facts.

Counsel had an opportunity to present such an affidavit, and his failure to do so precludes him from demanding that the judgment entered upon his default be .set aside as a matter of absolute right. He has, however, made a motion to open his default upon an affidavit stating these facts, and the motion was granted upon the payment of a trial fee of $30. I think the order should be modified, by striking out the provision for the payment of this amount. The attorney was prevented from taking part in the trial of this action by reason of the direction of a justice of this court. If this direction was in fact authorized and proper, then his statement in court, even if not technically .sufficient, was under the circumstances hardly a negligent act requiring the imposition of costs. It must be remembered that such an affidavit could not have been prepared before coming to court, and,, though it was possible to prepare an affidavit thereafter, Tthink counsel might well have relied upon the court not requiring formal proof. If this direction was not in fact authorized,, then his failure to present' an -affidavit was immaterial, because under the rules of the court he had no legal excuse. In either event it seems to me improper to force the plaintiff to pay $30 because his attorney obeyed the direction of a court of which he is an officer.

Order should be modified as stated, and, as modified, affirmed, without costs or disbursements to either party.

DAYTON, J., concurs. GIEGERICH, J., concurs in result.