North Side Iron Works v. Thacke & Co. , 104 N.Y.S. 365 ( 1907 )

SEABURY, J.

This is an appeal from a judgment in favor of the plaintiff, entered by default after the defendants had appeared and answered in the action. The defendants moved to open the default, and an order was entered denying this motion. Both the order and the judgment' are now properly before us for review. Bevins & Rogers’ Appellate Court Practice, pp. 68, 69.

This default should not be opened. The following extract from the record discloses what occurred before the defendant’s default was taken:

“Defendants’ Counsel: I ask to have the case transferred to another court.

“The Court: For what reason?

“Defendants’ Counsel: I decline to state at present my reasons.

“The Court: Case marked ‘Ready.’ ”

Subsequently the defendants moved to open the default, and assigned as a reason their inability to secure the presence at the trial of a necessary and material witness, and counsel recites in his affidavit that he—

“requested the justice presiding to send the case to another court to be tried, which the said presiding justice did not do. Deponent then refused to try said action and withdrew from the courtroom.”

This motion the justice denied, with $10 costs. The action of the trial justice was entirely proper, and we are satisfied that he made a correct disposition of the case. The practice pursued by the attorney for the appellants merits severe condemnation.

The judgment is affirmed, with costs. All concur.