Lang v. Wiesner , 8 A.D. 619 ( 1896 )

Rumsey, J.:.

I can see no reason for opening this default. The plaintiff’s attorney evidently did not intend to try this case at the Circuit, although he was advised time and again* that the defendant would insist on trying it. He knew, on December eleventh, that the case would be likely to be reached, and that he would be obliged to try it, but he made no effort to get his witnesses, although all but one of them lived in Rochester and that one lived less than three hours’ ride from there. There was no claim made at the Circuit,, where the motion was made to put the case over, that plaintiff had tried to procure his witnesses, but the only excuse given was that he wanted to move for leave to serve a supplemental complaint. He has been guilty of laches even in that motion, so upon the whole I am clear that to open this default would operate to reward gross lathes and punish diligence of the defendant in preparing for trial. Motion denied, with ten dollars costs.