Union Stores Corp. v. Haight

Woodward, J.:

It appears from the undisputed facts in this case that the defendant had an arrangement with the plaintiff’s attorney to keep watch of the calendar, that it might not be necessary for the former to be present at all times with his witnesses ; that through an inadvertence the case was at one time marked for inquest, but that the correction was made at once, with the consent of all concerned, so that the case was marked as being ready. It was not reached on the ready calendar, and on the day of the alleged default the case stood Ho. 17 on the ready calendar, or three from the bottom of the list. With defendant’s counsel at White Plains — the case being on the calendar in Brooklyn — the case was reached on Thursday, owing to the fact that for various reasons the earlier cases were passed. This occurred about noon, and plaintiff’s attorney telephoned defendant’s attorney and requested him to be on hand at the inquest in Brooklyn.at two o’clock in the afternoon of that' day. It was impossible at that time for defendant’s counsel to reach the court house in Brooklyn in time for the inquest, even though the trains were on time, and it was accordingly arranged that the inquest should be held and that the defendant should then take steps for opening the default. Defendant makes no serious objection to the opening of the default on terms, and while it is true that the order appealed from is one depending upon discretion, it is the discretion of the Supreme Court, of which this Appellate Division is one of the manifestations, and it seems to me that we should not permit this judgment to stand without opportunity for the defendant to try the issues. There was practically a stipulation on the part of the parties that the defendant should have such opportunity, and there being no conduct on the part of the defendant to indicate any disrespect for the rules of the court, or any purpose to interfei’e with the prompt dispatch of business, there would seem to me to be no reason why this default should not be opened. The language of this court in the case of Herbert Land Co. v. Lorenzen (113 App. Div. 802), however applicable to the facts in that case or to the general rules which should govern in cases of default, has no relation to the facts as disclosed in the moving papers now before us, and I am unwilling to take the position that a defendant who may have a meritorious defense is to be deprived of an opportunity to present that defense under the circumstances which existed in this case. If there was any dispute between the parties as to what the arrangement was ; if there was any apparent disposition on the part of counsel to trifle with the court or to embarrass litigation, it would be different. Ho such conditions prevail ; the respondent does not suggest a single reason why the order should be sustained, except that it is a matter resting in the discretion of the court, and as to that discretion this court is entirely competent to exercise it, and it should do so when the substantial ends of justice require such interposition.

Jenks and Hooker, JJ., concurred; G-atnor, J., read for affirmance, with whom Rich, J., concurred.