106 N.Y.S. 392 | N.Y. App. Div. | 1907
Appeal from an order denying a motion by the defendant to open his default and vacate and set aside an inquest taken against him.
It satisfactorily appears that at the time this inquest was taken the defendant was a sick man, and there was presented to the court upon the, application for an adjournment the affidavit of a .reputable physician, in which it was stated “ that the defendant has been confined to his bed since December 1.4, 1906. Althmigh Mr. Sheridan is improving in health, he still has a daily rise of temperature to 102°, and is at times very weak. Until these conditions are better, I must forbid him from going to court, as such duty would abe at the risk of his life.” It seems to us that while there had been some previous adjournments, they had all been caused by the defendant’s serious illness, and that under the circumstances presented the further adjournment asked for ought to have been granted. The order appealed from, therefore, should be reversed, without costs in this court to either party, and the motion to open the inquest and let the defendant in to defend granted upon the payment of costs as taxed, and ten dollars motion costs, the judgment to stand as security. Present —'Patterson, P. J., Ingraham, Laughlin, Clarke and Houghton, JJ. Order reversed, without costs, and motion granted -on terms stated in opinion. Settle order on notice.
