French Fur Dyeing & Blending Co. v. Gersch

GUY, J.

The plaintiff sued the defendant for work, labor, and services amounting to $7.50 in dyeing a mink set belonging to the defendant. The defendant interposed a counterclaim for damages, in that the set was made valueless by the manner in which the work was done, and demanded judgment for their value of $170.

[1,2] Upon the day set for trial the defendant’s attorney, who resides in New Jersey, by reason of an automobile accident on the way to the train, missed it and failed to appear in court until about 9:40 a. m. He was represented by his clerk, who asked at 9:30 a. m. for a short delay in the trial to enable his principal to arrive; but this was denied, and an inquest ordered and taken. These facts appear in the papers used upon the motion to open the defendant’s default. The defendant, under the cause of action, has no independent cause of action upon his counterclaim, as in such an action the judgj ment in the case at bar would be res adjudicata. Goldberg v. Schlessinger, 86 N. Y. Supp. 207.

The defendant and his witnesses were present in court, and the delay of the attorney was excusable. Under such circumstances, the default should have been opened, upon such terms as the court might have seen fit to impose within the statute.

Order reversed, default opened, upon payment of $10 costs, and a new trial ordered, with $10 costs of this appeal to the appellant. Costs to be offset. All concur.