135 N.Y.S. 447 | N.Y. App. Div. | 1912
The cause was regularly upon the calendar and the default was duly taken. The sole ground upon which the application was made to vacate the judgment was the alleged illness and inability of the defendant to attend the trial as a witness. Hia inability to attend the trial was not satisfactorily shown; but on the contrary his neglect so to do was inexcusable. The fair inference from the facts disclosed by the record is that he deliberately abandoned the trial while able to attend court and if he did not plan to have the court misled with respect to the state of
1ST either on the original application for further delay on account of the illness of the defendant, nor on the motion to vacate the judgment, was any letter or telegram from the defendant or any affidavit made by him presented to the court, nor was an affidavit or certificate of any physician in St. Louis or Florida presented showing, or tending to show, that he was unable to return, or that it would endanger or in any manner affect his health to do so. The reasonable inference from the facts" presented
It follows, therefore, that the order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
Ingraham, P. J., Clarke, Scott and Miller, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, .and motion denied, with ten dollars costs.