Miller v. Mayer , 151 N.Y.S. 236 ( 1915 )

BIJUR, J.

It appears from the record, and is not denied by plaintiff, that when this case was called for trial an affidavit was presented to the trial judge showing that defendant’s attorney was then engaged in the trial of a case in the Court of General Sessions. As defendant was thereupon entitled to an adjournment of his case to await the release of his counsel from that engagement, the default was taken without justification.

Order opening default modified, so as to provide that the motion is granted without terms, and without costs of motion, and, as modified, affirmed. Judgment vacated, and new trial ordered, with costs to appellant to abide the event. All concur.