Anderson v. Lazarowitz ( 1913 )

BIJUR, J.

The only reason given for opening the default of the defendant, taken upon his failure to appear at the time the case was set down for trial, is that the defendant’s attorney, who was. engaged in a Brooklyn court, sent his clerk to the courtroom to inform the justice that his employer was on his way there, and to ask that the case be held to await his arrival. It is significant that no affidavit of the clerk was submitted, nor its absence explained. The motion to open the default was properly denied.

Order affirmed, with costs, with leave to defendant to renew the motion, upon payment of the costs of this appeal within five days after service of a copy of the order entered herewith and notice of entry thereof. All concur.