When this case was called for trial the plaintiff had grossly violated the rules which are prescribed for the trial of cases at Trial Term, and the court was not only justified in disposing of the ease, but was required so to do. When the engagements of counsel were such that it was apparent that he would not be able to try a case which had appeared upon the day calendar and had been passed on account of his actual engagement in court the plaintiff was bound to procure other counsel so that the case could be tried as provided for in the rules adopted for the regulation of trials at Trial Term; and had the court below in the exercise of its discretion refused to open this default we should not be disposed to interfere. The Special Term presided over by the learned judge before whom the case was called for trial has, however, in the exercise of its discretion relieved the plaintiff from the effect of this violation of the rules, and we are not disposed to reverse its action. We think, however, that the terms imposed as a condition for opening the default were insufficient. The case appeared upon the day calendar of the Trial Term for trial on Thursday, January 8, 1903, and was *628adjourned from day to day on account of engagements of the plaintiff’s counsel until January nineteenth, when the complaint was dismissed. During all that time the defendants were compelled to have their witnesses in court and their counsel ready to try the case, and during that time the plaintiff’s ' counsel, on account of whose engagements the case was passed, tried three cases, the ease in which he was actually engaged when the case first appeared on the day calendar having ended a day or two thereafter. The counsel then went into the trial of other cases, notwithstanding the fact that this case had been held on account of his engagement. At least the defendants should be indemnified so far as possible for the. expense that they were put to in the preparation of the trial of the case when it had been regularly called for trial upon the day calendar.
We think, therefore, that the order should be modified by imposing as a condition of the opening .of the default that the plaintiff pay a trial fee- and ten dollars term fee, and the disbursements incurred by the defendants for witnesses’ fees during the term at which the complaint was dismissed, and ten dollars costs of opposing this motion, and the order as thus modified is affirmed, without costs of this appeal.
Patterson, O’Brien and Hatch, JJ., concurred; Van Brunt, P. J., dissented.