Wolfert v. Liverpool & London & Globe Insurance

Guy, J.:

The plaintiff brought nine separate actions in the court below on policies issued by' nine insurance corporations, including the defendant, to recover for losses sustained by fire to his stock, machinery and fixtures.

After several adjournments the cases appeared on the calendar of Part I on March 30, 1916, and were numbered upon that calendar from 10637 to 10645 inclusive. On that date in Part I the' trial of the first of plaintiff’s cases, being the one against the Glens Falls Insurance Company, was begun, and as it was unfinished on Friday, March 31st, the last day of the term, the trial was adjourned to Monday, April 3, 1916, at Trial Term, Part II, and resulted in a verdict for the plaintiff for the full amount claimed with interest. On the following morning, April 4th, the remaining eight cases, of which this case was the first, were called for trial by the same justice in Part II, and the plaintiff’s counsel stated that he was not ready to proceed with the trial owing to the absence of several material and necessary witnesses, that he and his client were tired and fatigued as a result of the trial in the Glens Falls case, that the plaintiff was in no physical condition to undergo the strain of the trial at that time, and he also urged that the cases were not properly before the justice on the calendar of Part II. No notice of trial had been served by defendant upon plaintiff in any of these actions. The presiding judge denied the motion for an adjournment and dismissed the eight cases upon the ground, as stated in an order dated April 6, 1916, of plaintiff’s failure to prosecute the several actions.

Plaintiff thereupon moved to open the default, and the relief asked for was granted upon condition that the plaintiff pay a trial fee in each case and that he stipulate to try the eight actions as one, separate verdicts to be rendered against each defendant.

The trial justice, being the same justice who made the order appealed from, has found as a fact that the plaintiff’s counsel assented to the transfer of all of the cases to Part II, and that they were regularly on that calendar when they were called for trial. Such assent, however, did not place defendant, in the absence of due service of a notice of trial, in a position where it was entitled to take the default of-the plaintiff upon failure of plaintiff to appear or upon plaintiff’s refusal to proceed with the trial. The granting of the motion for judgment based upon plaintiff’s default was therefore erroneous, and plaintiff was entitled to an opening of said default without terms. Even had the default been properly granted the requirement that plaintiff should stipulate to try the eight actions together, as one deprived plaintiff of a substantial right and could not be properly imposed as part of the terms for opening the default.

The order appealed from must, therefore, be reversed with ten dollars costs and disbursements and the motion to open the default granted, without costs.

Bijub, J., concurs; Philbin, J., not sitting.

Order reversed with ten dollars costs and disbursements and motion granted, without costs.