Costello v. Bradley Contracting Co. , 151 N.Y.S. 278 ( 1915 )

GUY, J.

The action was brought to recover damages for a personal injury. The cause was No. 2136 upon the City Court calendar. It first appeared on the day calendar on Friday, October 30, 1914. The day preceding defendant moved for a bill of particulars, as well as for a stay pending the service thereof, which motion was granted, the decision thereof appearing in the Law Journal for October 30, 1914, and the order, with notice of entry, was immediately served.

On these facts being stated to the justice calling the calendar of Trial Term, Part 1, he passed the case until November 2, 1914. On October 31st, defendant notified .plaintiff, and later it filed an affidavit, that it it was not ready, because its superintendent and chief witness to the accident, one Patrick Sullivan, could not be found, after a diligent search, because he had given defendant’s attorney two wrong addresses, which were set forth. Notwithstanding the filing of this affidavit, the justice calling the calendar of Trial Term, Part • 1, allowed defendant’s default to be taken. The order for the bill of particulars allowed plaintiff 10 days in which to serve it and granted a stay until it was served. The stay was terminated by the service of the bill of particulars on the morning of November 2d. On the inquest the jury rendered a verdict in favor of-plaintiff for $600. The stenographer’s minutes of the inquest showed that the justice calling the calendar of Part 1 ruled that the affidavit for an adjournment “contained no legal reasons whatsoever for an adjournment of the trial.” When the case was called, “defendant’s attorney refused to proceed to trial and left the courtroom,” after stating “that he could not go to trial, but that he would make a motion to open the default after an inquest was taken”; also that the trial justice was asked to entertain, and refused to entertain, a motion to open the default.

We think the defendant offered sufficient proof to warrant the Special Term in holding that it had successfully excused the default. Order affirmed, with $10 costs and disbursements. All concur.