18 N.Y.S. 327 | N.Y. Sup. Ct. | 1892
At a term of the county court of Erie county, held on the 19th day of January, 1891, this cause, it is claimed by the defendant, was duly noticed for trial. The plaintiff’s counsel, happening to be in court on that day, discovered the cause on the day calendar, and objected to its continuance there upon the ground that no notice of trial had been served upon , him. Thereupon the court, without the consent of the plaintiff’s attorney,, set the case down for the following day. On that day, namely, the 20th of January, 1891, the cause was reached. The plaintiff did not appear, and under an affidavit showing the deposit of a proper notice of trial in the post-office, directed to the plaintiff’s attorney, the defendant was allowed to move the case and to obtain an order by default dismissing the complaint, with costs. The motion to open such default was made .upon the ground mainly that the proof of the service of the notice of trial adduced by the defendant’s attorney did not show that it was served upon the plaintiff’s attorney by