24 Misc. 196 | N.Y. App. Term. | 1898
The. defendant seeks to set aside the judgment which she claims was entered against her -in favor of the plaintiff by default.
An appeal having been taken from such judgment, and the return having been "filed, we are authorized to entertain the motion. Kellock v. Dickinson, 5 App. Div. 515.
. That portion of the appeal from the order denying the motion to open the defendant’s default is ineffectual, for the reason that.
These provisions were derived in part from section 366 of the Code of Procedure, the fourth section of which was amended by inserting the clause, “either upon the return of the summons, or at the time to which the trial of the action was adjourned,” in order to settle the conflict between William v. McCauley, 3 E. D. Smith, 120, and kindred cases, on the one hand; and Armstrong v. Craig, 18 Barb. 389, on the other; in accordance with the ruling in the last case. Throop’s Anno. Code, 1891, p. 784. Hardin, J., in giving the opinion of the court in Thomas v. Keeler, 52 Hun, 318, 320, says the purpose of section 3064, supra, “was to provide a remedy for any fraud practiced, or improper means employed, by a party to induce his adversary not to appear before a justice, either on the return of the summons or at the time to which the trial was adjourned, or when such failure was occasioned by accident or mistake or other misadventure.”
It appears from the return and the averments contained in the affidavits submitted in behalf of the defendant, that after joining issue the trial of the cause was adjourned from time to time, and until March 10th, 18-98'; that on the day preceding said last-mentioned date the husband of the defendant, at the request of the latter’s attorney, called upon the plaintiff’s attorney, and informed him that his child was sick, and unless its health improved,' his wife
It appears from the return that on the said 10th day of March, 1898, Mr. Lumley, who is neither an attorney nor an attorney’s clerk, requested the justice to adjourn the trial because of his child’s serious illness, and that the attorney for the plaintiff opposed the application on the ground that the child, as he was apprised, suffered no illness, and promising to produce a witness to that effect.
Emma Wilson, who was formerly in the service of the defendant, was then called as a witness by the plaintiff, and testified that on the preceding daiy she had called at the residence of the defendant, during the latter’s absence therefrom, and found the child, who said he had been ill, but who had then entirely recovered, at play. Upon the conclusion of this witness’s testimony the court announced that it would go on with the case.
It also appears from the uncontradicted averments contained in Mr. Lumiey’s affidavit that the justice, upon a request being made, would not permit a message to be sent to the defendant’s attorney as to the refusal of the court, notwithstanding plaintiff’s attorney’s acquiescence and willingness to adjourn and wait until 2 o’clock in the afternoon. - ■
The return further shows- the plaintiff then proceedéd to prove his alleged- cause of action, i. e., for medical services, by his own testimony, and by that of. two additional witnesses.
Mr. Lumley was the only witness called in behalf of the defendant, and his examination was conducted by the court. The testimony being then closed the justice awarded judgment in favor of the plaintiff for the full amount claimed,-with costs and extra costs.
While from the affidavits submitted by the defendant it appears that from the 5th to the 16th day of March, 1898, her three-years’
. The plaintiff insists that the cross-examination of witnesses by defendant’s husband operated as an appearance for the-defendant, and that hence the latter participated in a trial. The difficulty with this contention, however, is that Mr. Lumley had no authority whatever to represent his wife upon said occasion, except for the purpose of making a statement to the court respecting the condition of the child. There was, therefore, no appearance by the defendant. Armstrong v. Craig, supra. In the last case, C. L. Allen, J., speaking for the court at page 390, says:' “ When may it be said that a defendant fails to appear? When neither he nor his authorized attorney attends the trial and- takes part in it.”
The judgment should, therefore, be set aside, and a new trial directed-in the Municipal Court in the city of Mew York, borough of Manhattan, Eleventh District, with costs to the appellant to abide the event.
Beekman, P. J., and Giegerich, J., concur.
Judgment set aside and new trial directed in Municipal Court, with, costs to appellant to abide event.