Plaintiff in this case brought action against The Union Railway Company of New York City to recover damages sustained through the operation of the defendant's car on St. Ann's avenue, The Bronx, New York city. He was riding a motorcycle which skidded and threw him off in front of the defendant's car. The car did not strike and knock him off; he slipped off because of the wet pavement, and charges the motorman with negligence for not having stopped in time to prevent striking him. The motorman says *Page 8 that he was too near the plaintiff to stop. Thus the issue, which should have been tried out in a proper and orderly way, and as is the custom in this realm.
The case appeared upon the trial calendar on February 25, 1932, when the plaintiff's attorney made an application to have it set down for a day certain for trial. Mr. Justice CALLAHAN set the case down for trial for March 14, 1932, giving a two weeks' adjournment. Thereupon the plaintiff's attorney wrote to the judge demanding an earlier day. The judge sent for the defendant's lawyer and said he would place the case down on the calendar for Friday, March 11, 1932, so that it would surely be tried the following Monday, March the 14th. These facts are not denied. Mr. Justice CALLAHAN knew whether these statements were true or false.
On Friday, the 11th, the calendar was called by another judge sitting at Trial Term. The defendant not being ready, asked an adjournment until Monday, the 14th, pursuant to the previous understanding. An inquest was ordered and the trial proceeded over strenuous objection of the defendant, resulting in a recovery of $25,000 damages in favor of the plaintiff. Thereupon a motion was immediately made before Mr. Justice CALLAHAN to open and set aside the recovery and to grant a new trial. He knew all the facts, including his directions and instructions to the defendant. The motion was made "upon the inquest herein and uponall the pleadings and proceedings heretofore had herein," as well as upon the affidavits of the lawyers setting forth the above facts. Mr. Justice CALLAHAN set aside the inquest and directed a new trial. From this order the plaintiff appealed to the Appellate Division, which reversed the order granting a new trial and denied the motion, two of the justices dissenting. Thereupon, by virtue of the order of the Appellate Division, and pursuant to its directions, judgment was entered for the sum of $25,000, with costs and interest, *Page 9 against the defendant. From this judgment and intermediate orders the defendant appeals to this court.
A party may not appeal from a judgment or order rendered or made upon his default. (Civ. Prac. Act, § 557.) This is not a default judgment. The case was at issue. The defendant appeared and vigorously protested against the trial on Friday, March the 11th, when the arrangement had been to try it on Monday, March the 14th. The engagements of counsel were not accepted as an excuse. The appearance of a defendant earnestly pleading for an opportunity to present its evidence upon the issues framed by its answer is not a default. On the contrary, it is a vociferous appearance. The refusal of the court to give counsel a reasonable opportunity to procure his witnesses does not cast upon the defendant the opprobrium of defaulting or failing to appear.Herpe v. Herpe (225 N.Y. 323, 327) illustrates the meaning of "default," because there the party failed both to plead and to appear. The Appellate Division of the fourth department, inCitizens Trust Co. v. Prescott Son, Inc. (221 App. Div. 426,431), correctly held that a judgment taken against one who appears at the trial and asks for a reasonable postponement is not a default judgment. The language, so appropriate, may be quoted here: "Here defendant regularly appeared by attorney; had answered and, from the beginning, been actually engaged in an effort to protect its alleged rights and to avoid judgment against it. It appeared by attorney on the trial and moved for a postponement and stay upon the same grounds as had been heretofore urged by it in a similar motion on papers; it filed those papers in connection with its renewed motion and, when overruled, duly excepted on the record." The judgment taken was held not to be a default judgment. (See, also, King v. Ross,28 App. Div. 371 [First Department].)
The judgment was a final judgment, appealable to *Page 10 this court. An order was granted by Mr. Justice CALLAHAN requiring the plaintiff to show cause why the inquest should not be vacated and a new trial ordered. The motion was made upon the inquest and on all the pleadings and proceedings which theretofore had been had. On the return day, the motion was granted, the inquest and the judgment granted by the trial judge, $25,000, set aside and a new trial granted. Note that all the proceedings, including the proceedings at the inquest, were before Mr. Justice CALLAHAN, who granted this motion. On appeal the same proceedings were before the Appellate Division. Whether or not the testimony was printed in the appeal book is immaterial, for the reason that the appeal book before an appellate court is presumed to have in it all the papers and proceedings before the lower court, or such as the counsel in the case deem important. If any be omitted, it is by the acquiescence and consent of respondent's counsel. The fact is, then, that the Appellate Division is presumed to have had before it the entire inquest and all the proceedings which were had on March 11, 1932, and the affidavits which were submitted to Mr. Justice CALLAHAN. The recitals in his order to show cause show that the motion to vacate was made upon all these papers and proceedings.
On appeal, therefore, the Appellate Division had before it the inquest and facts relating to the asked for adjournment and the acts of Mr. Justice CALLAHAN. The Appellate Division reversed the order of Mr. Justice CALLAHAN and denied the motion for a new trial, whereupon, pursuant to its order, and by virtue thereof, judgment was entered against the defendant for $25,000, which was final in all its effects, including the finality required for appeal to this court.
To say that the defendant must now appeal upon the same record to the Appellate Division from this judgment is to require a vain and idle ceremony. Practice *Page 11 in these days has abolished such empty forms. Courts must deal with realities, and not with shades arising from speculation. The defendant has a grievance to be reviewed which must not be obscured or hindered by the complexities and uncertainties of appeal methods. The defendant has against it a final judgment without having had a fair opportunity to present its evidence and be heard, and appellate courts are to facilitate the review of such cases. Court practice is nothing but the means by which the merits of a case may be presented to a court, and must never assume such an importance that it supplants those merits. All of which has been expressed in different language in Girling v.City of New York (197 N.Y. 302). The action was brought to recover damages alleged to have been sustained by the plaintiff, owing to negligence of the defendant in failing to keep a certain sidewalk in the borough of Brooklyn free from snow and ice. A verdict for the plaintiff was set aside and a new trial granted upon the exceptions, and because the verdict was contrary to the evidence. The order setting aside the verdict was appealed to the Appellate Division, which reversed the order and reinstated the verdict. Judgment was thereupon entered on the verdict and the defendant appealed to this court. The motion to dismiss the appeal was denied, and this court said: "The learned counsel for the plaintiff contends that the appeal is unauthorized because the Appellate Division did not refuse a new trial, but simply reversed an order of the Trial Term which granted a new trial. In taking this position he relies upon form rather than substance, for the effect of the determination of the Appellate Division is that a new trial was refused. The object of the section, so far as it relates to the subject now in hand, is to authorize an appeal from a final judgment rendered by the court of original jurisdiction, after the refusal directly or indirectly by the Appellate Division of a new trial, without appealing, for the second time and *Page 12 upon the same question, to the Appellate Division and from the final judgment there rendered to the Court of Appeals. We think the appeal was authorized because it is within the spirit of the section. A new trial was in effect refused by the Appellate Division when it reversed an order which had granted a new trial. It decided that a new trial should not be had, and this was a refusal of a new trial within the meaning of the section, and we have so held. (South Bay Company v. Howey, 190 N.Y. 240, 245;Ridgely v. Taylor Co., 196 N.Y. 556.)"
In substance this case and the Girling case are identical. To say that one was an inquest and the other a trial is to place emphasis upon words rather than upon things. The result to the defendants is the same. A verdict or judgment directed against the defendant was set aside, in one case by the trial judge, in the other by the Special Term, also held by a judge. The order setting aside the judgment or verdict and granting a new trial was reversed by the order of the Appellate Division in both cases, and thereafter final judgment entered against the defendant by virtue of the order of the Appellate Division. TheGirling case, followed by Logan v. Guggenheim (230 N.Y. 19), bids us to consider the judgment herein as one entered by direction and authority, whether directly or indirectly, of the order of the Appellate Division and as a final judgment, reviewable directly on appeal to this court.
Coming to the merits, we recognize that the setting aside of a judgment taken upon inquest is a matter resting largely within the discretion of the trial court, and the Appellate Division, and that the calendar practice as now conducted in the first and second departments requires expedition upon the part of the litigants to get ready their causes for trial at the earliest possible hearing. Delays must not be countenanced if they can be avoided.
On the other hand, all parties must be afforded a *Page 13 reasonable opportunity to prepare for trial and meet the demands of law suits, or else one may be deprived of his property without due process of law, and the constitutional guaranties become meaningless phrases. Due process may be denied under legal forms as well as by force of arms. This discretion, vested in the lower courts, may, however, become a question of law reviewable by this court, when its exercise is so arbitrary as to deprive litigants of a reasonable opportunity to be heard, or, in other words, comes within that class of rulings which for better terminology, we call "an abuse of discretion." This is not a very polite nor exact description; the term perhaps is unfortunate; it simply means that the court has gone too far and beyond the bounds and limitations set by previous example.
Thus in Lawrence v. Farley (73 N.Y. 187), where the defendants made default in not appearing or answering, and the Special Term opened the judgment and granted relief, this court, through RAPALLO, J., said: "The sufficiency of the excuse given by the defendant for suffering the default, and the propriety of granting him the relief which he asked, were matters within the discretion of the court below, and the case discloses no abuseof such discretion."
Chief Judge CULLEN, writing in Park Sons Co. v. Hubbard (198 N.Y. 136, p. 139), said: "As to the discretion of the court to grant or refuse leave to serve a supplemental pleading, we adhere to the views expressed by Judge FOLGER in Holyoke v.Adams (59 N.Y. 233) and repeated by the same learned judge inSpears v. Mayor, etc., of N.Y. (72 N.Y. 442): `It has a discretion to permit or to refuse a supplemental pleading; but that discretion must be exercised reasonably, and not capriciously or willfully.'" (See, also, Halfmoon Bridge Co. v.Canal Board, 213 N.Y. 160, p. 165.)
Judge WERNER, writing for this court in Matter ofSuperintendent of Banks (207 N.Y. 11, 15), said: *Page 14 "`Judicial discretion' is a phrase of great latitude; but it never means the arbitrary will of the judge. It is always `a legal discretion to be exercised in discerning the course prescribed by law; when that is discerned it is the duty of the courts to follow it.'" (See, also, Forrest v. Forrest,25 N.Y. 501; Matter of Holbrook, 99 N.Y. 539; Roberts v. N YElev. R.R. Co., 155 N.Y. 31.) This court said in Forrest v.Forrest (supra, at p. 520): "The power must, however, be shown to have been arbitrarily exercised. Otherwise, the law does not contemplate a review of such decisions in this court."
Bossout v. R., W. O.R.R. Co. (131 N.Y. 37), in the last paragraph, at page 42, recognized the right of this court to review a judgment and order of this kind when there had been an abuse of discretion.
Bassett v. French (155 N.Y. 46) related to a default in pleading, and to the ordinary rule that discretionary orders and judgments are not appealable to this court. No abuse of discretion was claimed in that case, and consequently the appeal was dismissed. The situation is entirely different here.
The right to appeal to this court from this judgment is further strengthened by analogy to the practice provided in section 590 of the Civil Practice Act.
As bearing upon the abuse of the discretion of the lower courts in refusing this defendant a reasonable opportunity to try its case, reference may be had to a prior ruling of the same Appellate Division in Riglander v. Star Co. (98 App. Div. 101,106), where it was said: "`Due process of law requires that a party shall be properly brought into court, and that he shall have an opportunity when there to prove any fact which, according to the Constitution and the usages of the common law, would be a protection to him or his property.' He is not only to be brought into court, but must have an opportunity to present his evidence. If he is not allowed sufficient time to prepare his evidence, according to the usual means *Page 15 of obtaining evidence for use in courts of justice, his so-called day in court is only a snare and a delusion. He is deprived of a right which is not only accorded to other suitors, but which it would be error to refuse them. This cannot be due process of law. The process of the law includes every step from summons to judgment, and if a party is deprived of any right usually accorded to others, it is not due process of law." (See, also,Missouri ex rel. Hurwitz v. North, 271 U.S. 40.)
When a case first appearing upon the calendar is set down for trial on March the 14th, 1932, and appears by the direction of the court on the calendar of the 11th, with the understanding that it will be held until the 14th, the beginning of the week, and another judge not familiar with these arrangements, sitting on the 11th, orders and directs an inquest, over the objection and protest of the defendant, the proceeding is so unusual that the denial of the motion by the Appellate Division to open the inquest and grant a trial to the defendant is unwarranted and should be reversed.
POUND, Ch. J., HUBBS and CROUCH, JJ., concur with LEHMAN, J.; CRANE, J., dissents in opinion in which KELLOGG and O'BRIEN, JJ., concur.
Appeal dismissed. *Page 16