Plaintiff has appealed from two orders of the Special Term of the Supreme Court granted after a hearing held on December 2, 1938, and entered in the office of the clerk of Albany county on May twenty-fourth and twenty-sixth, respectively, denying his motion to open a default and to vacate and set aside the proceedings had at such Special Term including a decision dated December 10, 1938, and entered December 14, 1938, made by the justice who presided thereat.
The orders apparently are identical except as to costs; one of them was procured and entered by the attorney for one of the defendants and the other was procured and entered by the attorneys for plaintiff.
The action is for an accounting of a trust fund involving several hundred thousand dollars heretofore created by plaintiff for the benefit of his former wife, defendant Madeline S. Gaston, and their daughter, defendant Maude S. Hilton, and of which fund the defendants Mack and Watson are trustees. By the terms of the trust plaintiff is entitled to one-half of the principal of the estate when the daughter arrives at the age of twenty-five years.
After the commencement of the action plaintiff applied to the Special Term of the Supreme Court for an order of reference to hear and determine. That motion was opposed, not by the trustees, but by the attorneys representing plaintiff’s former wife, and the special guardian for the infant daughter. The Special Term granted the application and appointed a referee to take the accounts of the trustees- and to hear and determine the issues. An appeal was taken from that order to this court. On November 15, 1938, the attorneys for the respective parties appeared before this court and consented to the dismissal of the appeal. They could not agree however on the question of costs. The presiding justice stated that the order would be reversed by consent and the court reserved its decision on the terms to be imposed. On November 23, 1938, this court made the following decision: “ Order reversed, on the *711law and facts, on consent, with fifty dollars costs and disbursements.” (255 App. Div. 920.) On November 26, 1938, a formal order was made by this court and on December 1, 1938, such order and a judgment of reversal were entered in the Albany county clerk’s office and copies thereof served on plaintiff’s attorneys on the same day.
Meanwhile and on November 15,1938, the attorneys representing the beneficiaries of the trust fund served on plaintiff’s attorneys notes of issue for a trial of the cause to be held on December 2, 1938. Plaintiff’s attorneys promptly returned the notes of issue on the ground that the issues involved had been referred by order of the court to a referee and that such order had not up to that time been reversed or set aside. On December 1, 1938, plaintiff’s attorneys notified the justice assigned to hold the Special Term that the case was not in shape to be tried because no order of reversal of the order appointing a referee had then been made or entered and that the notes of issue served by the attorneys had been returned.
On December 2, 1938, plaintiff’s attorneys served a note of issue on defendants for a trial of the cause at a Special Term appointed to be held on December 16, 1938, by another justice.
Plaintiff and his attorneys did not appear before the Special Term on December second. The attorneys for the defendants' appeared and moved the cause for trial and after submitting proof the court rendered a decision in their favor denying plaintiff's application for an accounting or for any other relief. Later the justice who presided at the Special Term signed a judgment by default against the plaintiff in which judgment separate bills of costs were given to each of the four defendants and extra allowances amounting to $2,300 were made. Later plaintiff applied to the Special Term presided over by the same justice before whom the prior proceedings were had for an order “ vacating and setting aside all proceedings had at the Kingston Special Term held December 2nd, 1938.” That motion was denied and from the order entered on such decision the plaintiff has come to this court.
The principal question which this record presents is whether or not defendants’ attorneys on November 15, 1938, could properly notice the cause for trial for December second following. We think they could not and that their note of issue was prematurely served. The appeal from the order of reference was then pending in this court. It is true that on the argument on November fifteenth the presiding justice stated that the order would be reversed by consent. The terms to be incorporated in such an order were not then determined by the court. As already pointed out, it was considerably later that our decision was announced and the formal order signed and entered. The attorneys for defendants were not *712in a position to notice the cause for trial until the appeal pending in this court was determined. The note of issue which they served was a nullity and conferred no jurisdiction on the Special Term to hear and determine the issues and hence the orders appealed from must be reversed. There is no basis for the statement that plaintiff waived his rights.
There is another reason why the orders under review cannot be sustained. It has been suggested that plaintiff should have appeared before the Special Term and objected to the procedure. Even if it be assumed that plaintiff should have adopted that practice his failure to do so was excusable and the Special Term in the exercise of a sound judicial discretion should have opened the default.
In denying plaintiff such relief the Special Term said, inter alia, “ As the moving papers fail to state any of the grounds which justify relief from the plaintiff’s default, this motion must be denied, with ten dollars costs.” We cannot adopt that view. Clearly plaintiff was entitled to have the trustees account for the fund in which he has a very substantial interest. Defendants assert that an accounting is unnecessary. That argument is wholly inconsistent with their position before the Special Term. At that time, in plaintiff’s absence, they made an accounting. Not only that but the Special Term actually granted them affirmative relief.
Plaintiff has not only been deprived of his day in court and the opportunity to examine the trustees, a right to which he was entitled as a matter of law, but excessive allowances to counsel have been made which must be paid by plaintiff and his infant daughter. We cannot sanction extra allowances to counsel for defendants of $2,300 besides statutory costs, for services in taking a judgment by default. In our opinion there is no justification for these awards.
There is one other matter to which we feel obliged to refer and for which the attorneys for all parties are responsible. It is apparent that defendants’ attorneys desired to have this cause heard by one Special Term and that plaintiff’s attorneys were anxious to have a hearing before a different Special Term. The practice of attempting to maneuver a cause before a particular judge is not to be commended. In our opinion it has a tendency to bring the administration of justice into disrepute.
The orders appealed from should be reversed on the law and facts, with ten dollars costs and disbursements, and plaintiff’s motion granted. _
Hill, P. J., and Postee, J., concur; Bliss, J., dissents, with a memorandum; Schenck, J., dissents, with an opinion.