(114 App. Div. 792)

#### IRONCLAD MFG. CO. v. STEFFEN.

(Supreme Court, Appellate Division, Second Department.

July 24, 1906.)

Judgment—Default Judgment—Opening—Grounds—Absence.

Code Civ. Proc. § 724, permits the trial court to relieve a party from a judgment taken through his mistake, inadvertence, surprise, or excusable neglect. *Held,*that where defendant left the city when he was aware that the case was about to come on the day calendar, and paid no attention to a letter written him by his attorney and he could have been informed) within an hour by telegraph that the cause was coming on for trial, it was proper to deny a motion to open a default taken against him.

[Ed. Note.—For cases in point, see vol. 30, Cent Dig, Judgment, §§ 269-274.]

Appeal from Special Term, Kings County.

Action by the Ironclad Manufacturing Company against Paul Steffen. Appeal by defendant from an order denying a motion to open a default taken against defendant. Affirmed.

Argued before HIRSCHBERG; P. J., and HOOKER, GAYNOR, RICH, and MIEEER, JJ.

Isaac N. Miller, for appellant.

Nervin R. Eindheim, for respondent.

GAYNOR, J.

This action was for goods sold and delivered. Section 724 of the Code of Civil Procedure permits the court to “relieve a party from a judgment, order or other proceeding taken against him *197through his mistake, inadvertence, surprise or excusable neglect.’’ This is very far short of allowing the opening of defaults as a matter of course, as some seem to suppose. Many have come to think that the worst that can come from a default is the payment of $10 to open it. A default is a serious matter. The diligent litigant who respects the rules of court is entitled to protection against those who have little or no regard for such rules. The case came on the day calendar on October 10th. By the calendar rules a cause is not tried the first day it is on. the day calendar, but is only called to see if it is ready, and to hear excuses or any application for postponement. By the said rule all such excuses and applications have to be presented by affidavit, and oral statements are not taken and are disregarded. If marked ready the cause is passed until next day, when it goes upon the section of the day "calendar which is made up of ready causes only. The defendant’s attorney did not submit any affidavit until October 13th, the cause not having been yet reached for trial. This affidavit was that the defendant was absent from home, and was either at Oran, or Queens, N. Y., and that he had written a letter to each place for him. The trial judge refused to postpone the case. On October 16th it was reached for trial and an inquest was taken against the defendant. In his affidavit to open the default the defendant says he went to Oran on October 8th, where he has a creamery, and that the first he knew of the cause being reached was when he returned home on October 34th. He does not say that he did not receive the letter of his attorney sent to him there.

The case was on the day calendar seven days, viz., from October 10th to October 16th, both inclusive. We must take notice that the defendant could have been informed within an hour by telegraph and probably by telephone that his case was on the day calendar, and that he could and should have been present next morning. He was written to by his attorney but failed to come back. There is no pretense that the letter went astray in the mails. It is plain that the default was suffered intentionally. This is confirmed by the opposing affidavits, which show that the defendant’s attorney said the defendant was too busy a man to litigate the case, and that the said attorney consented to the default. And on the 8th when the defendant says he went away it was plain that the case was about to come on the day calendar.

The order should be affirmed.

Order affirmed, with $10 costs and disbursements. All concur.