Rogg v. Simelowitz

PER CURIAM.

This is .an appeal from a judgment entered against the plaintiff upon his default in failing to appear at an adjourned day and from an order denying his motion to open such default. The judgment having been taken upon plaintiff’s default, an appeal therefrom will not lie, and the appeal from the judgment must, therefore, be dismissed.

The facts leading up to the denial of plaintiff’s motion to open his default are substantially as follows: The case came on for trial upon June 14, 1906. During the taking of testimony it was deemed important that a certain lease said to have been in possession of one of the defendants’ witnesses should be produced, and the cause was adjourned until the next morning to enable such lease to be produced. The next morning, owing to the attorney for the plaintiff being delayed, the case was called and dismissed. The affidavit of the plaintiff’s attorney, used upon his motion to open his default, states as an excuse for his delay in appearing before the court on the morning of June 15th. in time to proceed with the trial when the case was called, as follows:

“On June 15, 1906, deponent, by reason of the case of Weinthal v. Herman, which appeared near the head of the calendar at Trial Term, Part 2, of the City Court, before Mr. Justice Green, wherein deponent appeared for plaintiff, deponent was somewhat delayed in appearance before this court.”

This is clearly insufficient. Nothing is shown by that statement that shows any reason why plaintiff’s attorney failed to appear in the Municipal Court in time to answer to the call of the case. On the other hand, one of the defendants swears positively that the plaintiff’s attorney- was not in the courtroom soon after the case was called, and denies that said attorney was in the courtroom that morning. The plaintiff is not without remedy, as she can bring another action. The order denying plaintiff’s motion should be affirmed.

Appeal from judgment dismissed, without costs, and order affirmed, with costs. 1