Union Stores Corp. v. Haight

Gaynor, J. (dissenting):

We ought not to overrule the learned Judge below, and open this so-called default. In Kings county the day calendar is called in one part of the court, and the Judge there sitting has the difficult task of supplying seven parts of court with causes, and keeping them busy, instead of allowing them to go idle and adjourn day after day for lack of work. He can do this only by proceeding on rules and system, and therefore a system of calendar rules was adopted several years ago, and has been followed ever since. The following are the chief rules: 500 or more causes are called on the general calendar once a month or oftener, if necessary, to give warning to the bar and to parties that they are soon to come on the day calendar in their numericalvorder for trial, and that preparation should be made therefor. A cause is marked ready ” on this general call if either or both sides answer ready; otherwise it is marked “ off ”, In due course the cause comes on the day calendar. It is *294not tried on the first day it is on the day calendar, but is only called to see if it is ready, and to hear any motion to postpone it. It is on what is called the reserve section of the day calendar. A motion to postpone may only be made on affidavits, and has to be disregarded if not made on affidavits. If not postponed it is marked ready, and the next day, or the next (or in due course, according to the progress of work) it goes to the ready section of the day calendar for that day and is to be tried when there reached: The time for excuses is past when the cause gets from the said reserved section of the day calendar to the ready section of the day calendar, unless something new happens meanwhile.

Counsel may not get together and agree that a cause shall be held, or passed for the day. To permit this, as is perfectly obvious, and as experience showed before the calendar rules were adopted, would be to break up the ready day calendar almost daily, and cause the parts of court to adjourn for lack of work, with a general calendar about two years in arrears, which would cause well-founded criticism of the courts, if not scandal (Herbert Land Co. v. Lorenzen, 113 App. Div. 802; Iron Clad Manufacturing Co. v. Steffen, 114 id. 792; Loehr v. Brooklyn Ferry Co., 115 id. 666; Rosenfeld v. Centred Vermont R. Co., 116 id. 851).

This being the system of rules, it is only necessary to state the facts as given in the affidavits below on the motion of the defendant to open the so-called default to see that the order denying the motion to open the defendant’s so-calUd default should be affirmed.

The cause having been marked ready on the general call mentioned above, the duty of each side was then to locate the witnesses and get ready. Such call is a warning for that very purpose. The cause came on the day calendar on April 10, 1907. That was the day for any excuse or application to postpone to be made. But none was made. On the contrary, the plaintiff’s attorney answered ready for both sides on the call. He did this by arrangement with the defendant’s attorney, who asked him to answer ready for both sides. The next day the cause was still on the reserve section of the day calendar, it not yet having passed to the ready section. It was again answered ready in the same way on the call that day, and it ivas so answered until and including the following Monday, April 15th. On that day the attorney for the defendant attended *295personally and answered ready, and the plaintiff’s attorney answered ready. The defendant’s attorney came late, however, and the cause having been marked for inquest in his absence, he had the Judge restore it, and answered ready. The cause was then answered ready April 16th, 17th and 18th by both sides. It was reached for trial on the said last-mentioned day, and the defendant not appear ing an inquest was taken against him.

Two excuses are given by the attorney for the defendant in his affidavit.

First, he says that he had an arrangement ’ all along with the attorney for the plaintiff that in case he was obliged to take deponent’s default that he would not take advantage of it to deponent’s prejudice ” — whatever this obscure or rather contradictory sentence may mean. If the meaning which is claimed for the defendant be given it, then we have the attorney for the defendant practicing a deception on the trial judge by answering a cause ready daily, when he had a secret understanding that it was not really to be tried at all if he chose to stay away. If attorneys could be suffered to do this with impunity the trial Judge would have no control of his calendar. He would be the helpless victim of such secret agreements by attorneys who would make them and then mislead the trial Judge as to the size and regulation of his calendar for the convenience of the bar, by openly and deceitfully answering ready for trial on the daily call. If attorneys may have such a secret agreement, go through the form of a sham default, and then go to the Judge at the motion part and have the default opened and put back on the day calendar, the trial Judge is ousted of all control of his calendar, and his day calendar can be broken down with impunity. Surely a calendar Judge should not be subjected to such treatment as this, and the Judge below who heard the motion to open the so-called default was right in so deciding. It is not for us to thwart the trial Judges in trying to conduct their calendars in a systematic and orderly manner, and preventing themselves from being the mere dupes of procrastinating attorneys.

Second, the other excuse given by the defendant’s attorney in his said affidavit is still more intolerable, if that were possible. He says that one of his necessary witnesses resided in California and two others in the state of Connecticut, and that it was impossible to *296get them to the trial; and yet he answered ready for trial from the beginning, and even on the morning of the day the cause was reached for trial and the inquest taken. Is a trial Judge to be subjected to such treatment as this, and are the rules established for the orderly conduct of business to be ignored with impunity ? Are we to uphold those who subject trial Judges to such treatment? Moreover, although issue was joined in the cause in 1904, during the more than two years that the' plaintiff waited to get his cause reached for trial, the defendant did not have the testimony of his non-resident witness taken. If the Judge below had opened, the default, the affidavit of the defendant’s attorney shows that he could not have gone dn with the trial, but that another inquest would ensue.

The affidavit of the plaintiff’s attorney shows that when the cause was reached for trial, he asked the trial Judge to hold the cause and allow him to communicate with the defendant’s attorney. This the trial Judge did, but to the communication of the plaintiff’s attorney the defendant’s attorney answered back to proceed with t¡he inquest and that he would thereafter take the proper steps to open his default ”. It is time that attorneys knew that defaults are not opened as matter of course, but that a default is a serious matter (Warth v. Moore Blind Stitcher & Overseamer Co., 125 App. Div. 211), and that trial Judges will be sustained in upholding the rules and the dignity of their courts.

If the facts were as stated in the opinion on which the order is about to be reversed, I should of course concur in the reversal. Instead I have stated the facts as they are, in vindication of the learned trial Judge who was deceived and imposed on, and of the other learned Judge who refused to open the so-called default, if for no other reason. It is very easy for this branch of the court to impair the usefulness by lessening the legitimate authority of the trial judges.

The order should be affirmed.

Rich, J., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted on payment of one trial fee and all the disbursements up to and including the time of the inquest.