Schlesinger v. Mendelson

PER CURIAM.

The defendants appeal from an order denying a motion to open their default. The pleadings show that the items of work sued upon are numerous; the plaintiff’s bill of particulars alone covering some 25 folios of items on which the action is based, and which are denied by the defendants. At the time set for the trial one of the defendants’ attorneys, who had sole charge of the case and who was to try it, was actually engaged in the trial of an action in the City Court. It also appeared that it was impossible to procure the attendance of several of defendants’ witnesses, whose testimony was material and important to the defendants. The court below refused, however, to grant an adjournment, and ordered an inquest, which was taken. Under the circumstances disclosed, the defendants’ default i should have been opened.

Order reversed, and a new trial ordered, with costs to appellant to abide the event, and motion to open default granted.