#### Hyman Cohen, Respondent, *v.*William J. Diamond, Appellant.

(Supreme Court, Appellate Term,

December, 1911.)

Municipal Courts — Procedure — Adjournment — Grounds — Sufficiency.

Where a case in the Municipal Court of the city of New York is adjourned to the 30th day of June for trial, the defendant’s expectation that' the case will not be tried until September is not unreasonable; and where, on the adjourned day, the justice is not in court, the defendant is not bound to anticipate the making of an order for the trial of the case in vacation; and where, on the day thereafter set, a material witness for the defendant is out of the State and has been since before the date of the prior adjournment and the defendant' has communicated with him by mail and telegraph and oifered to pay his expenses if he would return and testify and has received a letter from him saying he would be back by a certain later date, it is error to deny defendant’s motion for an adjournment; and judgment against him upon the denial of such motion will be reversed on appeal.

Appeal by the defendant from an order of the Municipal Court of the city of Hew York, borough of the Bronx, first district, denying a motion to open his default.

William E. Morris, for appellant.

John F. Cowan, for respondent.

*458Lehman, J.

The plaintiff sued the defendant for professional services rendered as attorney. Most of these services were rendered prior to 1907, or more than four years before the action was brought. After several adjournments, the case was on the calendar for trial on June twentieth; and on that day the defendant appeared in court with his witnesses ready for trial, but the case was not reached. The return is somewhat confused as to the adjournments after that date; but it would appear that the case was adjourned to June thirtieth, that on that date no justice was present and the case was adjourned by consent to July seventh. On July seventh it was peremptorily set for trial on July eleventh. On July eleventh the defendant secured an adjournment to July eighteenth on the ground that a material witness was absent, traveling in Ohio; on July eighteenth the defendant submitted an affidavit and a letter from his witness, dated July fourteenth, from Old Orchard, Maine, in which this witness' stated that he required a rest for a few days after traveling and could not be in New York on July eighteenth. The letter concludes: “ I hope you will postpone this case as I want to keep my promise to you.” The defendant furthér showed that he wrote to this witness and telegraphed to him and offered to pay his expenses to New York. There is no question in my mind that the defendant sufficiently showed that the testimony of the witness was very material and important and that he could not safely proceed to trial without his testimony. He was, therefore, entitled to an adjournment on July eighteenth, unless he.was negligent in failing to secure this testimony by deposition or subpoena before that date.

■I have carefully considered the record and I find no evidence of any negligence on the part of the defendant in securing this testimony. The defendant was ready with his witnesses on June twentieth. While there was apparently an adjournment on that day to June thirtieth, "the defendant states that he understood that the case was not to be tried until September. That this expectation was not unreasonable appears from the fact that, on June thirtieth, the justice was not in court; and, under rule I of the Municipal Court, *459this action could not he tried in July and August except by order of the presiding justice. The defendant had no reason to suppose that such an exceptional order would be made in a case where the plaintiff was suing upon a claim for services rendered four years before the action was brought. Ho such order was apparently made, but the case was peremptorily set for trial for July eleventh. On that date the witness was out of the State and the defendant could not procure his attendance in court. The trial justice should then have given the defendant a reasonable opportunity to have procured this . testimony and should not have ordered an immediate trial.

As a matter of justice, the defendant should- be given his day in court to meet the issues raised in this action. The plaintiff is an attorney suing a client and should welcome a trial where the justice of his claim can be properly adjudicated.

Order should be reversed, with costs to the appellant, and motion to open default granted.

Giegerich and Pendleton, JJ., concur.

Order reversed, with costs to appellant, and motion to open default -granted.