#### Jackson R. Campbell, Respondent, *v.*Belle M. Lumley, Appellant.

(Supreme Court, Appellate Term,

July, 1898.)

Municipal Court of Hew York — Belief of defendant from judgment by default — Code C. P., § 3064 — Jurisdiction of Appellate Term.

Where the defendant, in an action in a Municipal Court of the city of New York, has. appealed from a judgment taken against her by default and a return has been filed, the Appellate Term has jurisdiction to entertain her motion, made under section 3064 of the Code of Civil Procedure, to set aside the judgment, and the motion will be granted where manifest injustice has been done.

Appeal by the defendant from a judgment of the Municipal' Court of the city of Yew York, borough of Manhattan, eleventh-district, rendered in favor of the plaintiff, by the justice thereof.

Also, motion by the defendant, under section 3064 of. the Code of Civil Procedure, to set aside the judgment, and for a new trial.

The opinion states the material facts,

William D. Tyndall, for appellant.

Francis Duffy, for respondent.

Giegerich, J.

The. defendant seeks to set aside the judgment which she claims was entered against her -in favor of the plaintiff by default.

An appeal having been taken from such judgment, and the return having been "filed, we are authorized to entertain the motion. Kellock v. Dickinson, 5 App. Div. 515.

. That portion of the appeal from the order denying the motion to open the defendant’s default is ineffectual, for the reason that. *197an order of the justice of a Municipal Court denying a motion to open a default is not appealable. Jacobs v. Zeltner, 9 Misc. Rep. 455. See Greater New York Charter, § 1367; Laws of 1896, chap. 748, amending § 1367, Consolidation Act. The defendant, so far as the alleged default is concerned, is therefore remediless, unless afforded relief under section 3064 of the Code of Civil Procedure, which applies to appeals from the Municipal Court of the city of' Mew York. Code Civ. Pro., § 3213; Greater Mew York Charter, § 1367. The same provides: “ If the appeal is taken by a defendant, who failed to appear before the justice either upon the return of the summons, or at the time to which the trial of the action was adjourned; and he shows, by affidavit or otherwise, that manifest injustice has been done, and renders a satisfactory excuse for his default; the appellate court may, in its discretion, set aside the judgment appealed from, or stay proceedings thereunder, and by older direct a new trial before the same'justice, or before another justice of the same county, designated in the order, at such a time and place, specified in the order, and upon such terms as it deems proper.”

These provisions were derived in part from section 366 of the Code of Procedure, the fourth section of which was amended by inserting the clause, “either upon the return of the summons, or at the time to which the trial of the action was adjourned,” in order to settle the conflict between William v. McCauley, 3 E. D. Smith, 120, and kindred cases, on the one hand; and Armstrong v. Craig, 18 Barb. 389, on the other; in accordance with the ruling in the last case. Throop’s Anno. Code, 1891, p. 784. Hardin, J., in giving the opinion of the court in Thomas v. Keeler, 52 Hun, 318, 320, says the purpose of section 3064, *supra,*“was to provide a remedy for any fraud practiced, or improper means employed, by a party to induce his adversary not to appear before a justice, either on the return of the summons or at the time to which the trial was adjourned, or when such failure was occasioned by accident or mistake or other misadventure.”

It appears from the return and the averments contained in the affidavits submitted in behalf of the defendant, that after joining issue the trial of the cause was adjourned from time to time, and until March 10th, 18-98'; that on the day preceding said last-mentioned date the husband of the defendant, at the request of the latter’s attorney, called upon the plaintiff’s attorney, and informed him that his child was sick, and unless its health improved,' his wife *198would not be able to attend court on the following day; that said attorney promised to let the defendant’s' attorney know whether he would consent to an adjournment, and about half-past 12 o’clock in the afternoon of the same day plaintiff’s attorney telephoned to the defendant’s attorney: “ If Mr. Lumley will go to court tomorrow morning and state his child is ill, and that Mrs. Lumley cannot leave home to attend court, I will let the case go over until Monday; ” that the defendant’s attorney thereupon telephoned Mr. Lumley the purport of the message so received, the latter in reply saying, that he would attend court and make the excuse for his wife; and that the attorney for the defendant, relying upon the said statement of the plaintiff’s attorney, advised Mr. Lumley that ■he could likewise rely upon such assurance.

It appears from the return that on the said 10th day of March, 1898, Mr. Lumley, who is neither an attorney nor an attorney’s clerk, requested the justice to adjourn the trial because of his child’s serious illness, and that the attorney for the plaintiff opposed the application on the ground that the child, as he was apprised, suffered no illness, and promising to produce a witness to that effect.

Emma Wilson, who was formerly in the service of the defendant, was then called as a witness by the plaintiff, and testified that on the preceding daiy she had called at the residence of the defendant, during the latter’s absence therefrom, and found the child, who said he had been ill, but who had then entirely recovered, at play. Upon the conclusion of this witness’s testimony the court announced that it would go on with the case.

It also appears from the uncontradicted averments contained in Mr. Lumiey’s affidavit that the justice, upon a request being made, would not permit a message to be sent to the defendant’s attorney as to the refusal of the court, notwithstanding plaintiff’s attorney’s acquiescence and willingness to adjourn and wait until 2 o’clock in the afternoon. - ■

The return further shows- the plaintiff then proceedéd to prove his alleged- cause of action, *i.*e., for medical services, by his own testimony, and by that of. two additional witnesses.

Mr. Lumley was the only witness called in behalf of the defendant, and his examination was conducted by the court. The testimony being then closed the justice awarded judgment in favor of the plaintiff for the full amount claimed,-with costs and extra costs.

While from the affidavits submitted by the defendant it appears that from the 5th to the 16th day of March, 1898, her three-years’ *199old child was dangerously ill with la grippe and tonsilitis, with a tendency to pulmonary complications, and that it would have been manifestly improper for the defendant to have absented herself from the child at any time during the said 10th day of March, 1898, the affidavits read on behalf of the plaintiff tend to show that the illness of the defendant’s child was not of such a character as to prevent her attendance in court, and that the consent of the plaintiff’s attorney to adjourn the trial was conditioned solely upon the court’s sanction thereof; yet, nevertheless, the inference is fairly deducible, and plausibly so, that the defendant’s attorney was acting solely upon his honest understanding that the trial of the case would be postponed as before stated; that reasonably relying thereon he informed Mr. Lumley to attend court merely for the purpose of making a statement relative to the condition of the child, and, as a consequence, was induced to absent himself from the court on said above-mentioned date, and to make no preparation whatever for trial. Even aside from the illness of the defendant’s child, these considerations, to my mind, furnish a sufficient excuse for defendant’s failure to appear at the time above mentioned (Armstrong v. Craig, *supra),*and a careful perusal of the affidavits presented convinces me that manifest injustice has been done.

. The plaintiff insists that the cross-examination of witnesses by defendant’s husband operated as an appearance for the-defendant, and that hence the latter participated in a trial. The difficulty with this contention, however, is that Mr. Lumley had no authority whatever to represent his wife upon said occasion, except for the purpose of making a statement to the court respecting the condition of the child. There was, therefore, no appearance by the defendant. Armstrong v. Craig, *supra.*In the last case, C. L. Allen, J., speaking for the court at page 390, says:' *“*When may it be said that a defendant fails to appear? When neither he nor his authorized attorney attends the trial and- takes part in it.”

The judgment should, therefore, be set aside, and a new trial directed-in the Municipal Court in the city of Mew York, borough of Manhattan, Eleventh District, with costs to the appellant to abide the event.

Beekman, P. J., and Giegerich, J., concur.

Judgment set aside and new trial directed in Municipal Court, with, costs to appellant to abide event.