Opinion
November 21, 1906.
John J. Kirby [ John Delahunty with him on the brief], for the appellant.
Charles H. Levy, for the respondent.
The cause being reached for trial in the Kings Trial Term the plaintiff would not proceed with the trial, and the complaint was dismissed. The default, if it may be so designated, should not have been opened.
The action is for damages for alleged negligence by which the plaintiff's decedent was killed. It was begun in April, 1903. It was reached on the regular Friday advance call of the general calendar to ascertain what causes are to be tried in the ensuing month, and the plaintiff answered ready. It then came on the day calendar on April 20, 1904, but was marked off at the request of the plaintiff. It was then allowed to rest until April, 1905, when the plaintiff gave the required notice of five days under the calendar rules setting it down for trial. On May 11 it appeared on the reserve section of the day calendar pursuant to such notice, and was answered ready for trial by both sides. This section of the calendar is called to ascertain what causes are ready and to hear any excuses or requests for postponement. The causes marked ready thereon then move up to the ready section of the day calendar next day or as soon as may be in the despatch of business, and have to be tried. The time for excuses is past, except such excuses as arise after the ready section is reached. The system is established by calendar rules ( Burkart v. Johnson, 43 Misc. Rep. 419; Herbert Land Co. v. Lorenzen, 113 App. Div. 802; Iron Clad Mfg. Co. v. Steffen, 114 id. 792). This cause then came on the ready section of the day calendar, and was still there on May 15. The defendant was ready, with fifteen witnesses and also with counsel specially retained to try the case. Both sides again answered ready, as they had done right along. Next day the cause was still on the day calendar, and when reached for trial the plaintiff's attorney stated to the court that he had not had sufficient time to prepare and was not ready — this notwithstanding that he had answered ready on May 11 and each day thereafter to May 16 Nevertheless, and without any affidavit being submitted as the calendar rules require, and against the objection of defendant's counsel, the trial judge put the cause off and set it down for trial on October 5. No excuse whatever was given by plaintiff's attorney; he simply said he had not had time enough, although the action had been pending for over two years, and he had answered ready on May 11, and thereafter until May 16. He had been substituted as plaintiff's attorney six months before. The putting of the cause off until October was a plain injustice to the defendant, and contrary to the rules. The side that accepts and conforms to the rules of court, and is diligent and respectful, is entitled to the protection of the court. It should not be made the victim of the other side's refusal to observe the rules, and its lack of diligence and of respect for the administration of justice.
The cause again appeared on the reserve section of the day calendar on October 5, and was answered ready by both sides. Next day it was on the ready section. An affidavit was then presented on the plaintiff's side that Mr. Davis was to try the cause, and the court was requested to pass the cause for the day. No excuse for passing the cause was given. The trial judge marked the cause ready, and dismissed the complaint on the plaintiff refusing to go on with the cause. The excuse given on the motion to open the default was that the case was so far down on the list that the office clerk of plaintiff's attorney did not think it would be reached for trial that day. This cannot be taken as an excuse. It is for the trial judge to control the calendar, and not attorneys and clerks. It is impossible for a judge who calls the day calendar to keep the several parts of court supplied with work unless the calendar rules are observed, and they should be observed.
Finally, the plaintiff waited for over seven months before making the motion to open the default.
The order should be reversed and the motion denied.
HIRSCHBERG, P.J., and MILLER, J., concurred; HOOKER and RICH, JJ., dissented.
Order reversed, with ten dollars costs and disbursements, and motion denied, with costs.