It is not denied that the appellant’s counsel was, on the day and at the time when this judgment was entered against him, engaged in the trial of a case in the Municipal Court in Brooklyn, and that this excuse was properly presented to the judge below in the form of an affidavit; but this case was ordered to trial and a jury impaneled. A boy from the office of defendant’s counsel was present at the time, and, appreciating his own inexperience, he asked the clerk of another lawyer, with whom he was acquainted and who happened to be present in the court, to assist and advise him. The clerk referred to is not an attorney.
The learned judge below seemed to be of opinion that, because this boy and the young man were present when the jury was impaneled and while the plaintiff was giving formal proof to warrant the entry of judgment, the proceeding was a trial, and not a default. In this I think he was in error. There was not in court at that time either the defendant or any one authorized to represent him.
Order reversed, with $10 costs and disbursements, and default ■opened without terms. All concur.