114 N.Y.S. 170 | N.Y. App. Term. | 1909
The plaintiff’s motion to open a dismissal, suffered at the trial because of the absence of a necessary witness, was denied upon the ground, as appears from the papers on appeal, that the question was concluded by the determination of the court at the time when the cause was called for trial and an adjournment refused, which determination was to be reviewed only by direct appeal from an order denying the application for an adjournment. This rule of practice, announced by the Appellate Division of the Second Department (Warth v. Moore Co., 125 App. Div. 211), has not been adopted in the First Department. The case of Marchesini v. Scaccianoce, 110 App. Div. 130, is authority for the procedure followed by the plaintiff in seeking the exercise of the court’s discretion at Special Term for the purpose of obtaining relief from a judgment taken at the trial because of his inability to present his case after an adjournment had been refused, and the facts presented on the motion being such as to require the opening of the judgment, on terms, in the proper exercise of discretion (Richard v. Nat. Dis. Co., 95 N. Y. Supp. 547), the application shoitld have been entertained on the merits and granted.
There is also before us an appeal by the plaintiff from an order entered at Trial Term upon the denial of the application for an adjournment. This order affects a substantial right and, therefore, is appealable (Code Civ. Pro., §§ 3189, 1347, subd. 4), but, in view of the distinction in character between the application for an adjournment at the trial and a subsequent motion to open the judgment, on
Order denying motion for adjournment affirmed, with ten dollars costs and disbursements; order denying motion to open judgment of dismissal reversed, with ten dollars costs and disbursements, and motion granted upon payment of costs before notice of trial and ten dollars motion costs within five days.
Present: Gildersleeve, Bischoff and Guy, JJ.
Order denying motion for adjournment affirmed; order denying motion to open judgment of dismissal reversed, and motion granted upon payment of costs before notice of trial and ten dollars motion costs within five days.