#### Gerald M. Fennell, Respondent, *v.*J. Thomas Reinhardt, Appellant.

First Department,

February 5, 1909.

Judgment — opening default — terms.

Where the only excuse for the plaintiff’s failure to appear when a cause on the daiy calendar was readied was the fact that his attorney was ill and did not anticipate that the cause would be reached so soon, the plaintiff as a condition for opening the default should be required to indemnify the defendant against the charges of his attorney for attending the call of the calendar and taking the dismissal, and for other expenses incurred.

Terms merely indemnifying the defendant against costs of opposing the motion for opening the default are wholly inadequate;

Appeal by the defendant, J. Thomas Reinhardt, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 16th day of November, 1908, opening a default of the plaintiff herein, vacating the judgment entered on the default and restoring the cause to the calendar.

*Romeyn*Berry, for the appellant.

*William E.*Deane, for the respondent.

Laughlin, J.:

The object of the appeal is to review the decision of the Special Term with respect to the *terms*upon which the default should be opened. The propriety of opening the default is not questioned, and,, therefore, need not be considered. It appears that after the cause was at issue, it was duly placed upon the calendar, and in due comise of procedure under the rules- it appeáred upon the Friday call ealendar and was placed upon the day calendar in Trial Term, Part 14, on the 22d day of October, 1908. At the call of that day calendar no one appeared for the plaintiff, but the attorneys for the defendant were represented and the cause was marked ready on their part. On the second call of the calendar the same day no one appeared for the' plaintiff, and. a motion that the complaint be dismissed was made in behalf of the defendant and granted.. ■ The-*445only excuse for plaintiff’s default is an affidavit by bis attorney to the effect that lie did not anticipate that the cause would reach the call calendar or day calendar so soon, and that he was obliged by illness to leave his office on the 21st day of October, 1908, and was confined to his house under the care of a physician until after the twenty-fourth day of the same month. The practice of the attorneys for the defendant was regular in all respects, and they were entirely right in taking a dismissal of the complaint and in entering judgment thereon, inasmuch as there was no appearance on the part of the plaintiff and no excuse .offered for the failure of his attorney to look after the cause. Although justice requires that the plaintiff should be permitted to try his case, justice to the defendant requires that he should be indemnified against the charges of his attorney or cou nsel for attending the call of the calendar and taking a dismissal of he complaint, in addition to the other disbursement's- which he incurred. The terms imposed at Special Term, which merely indemnify the defendant against the cost of opposing the motion to open the default, were wholly inadequate. It appears by the bill of costs, as taxed, that five term fees were chargeable; that no disbursement was incurred for witness fees, and that the costs on entering judgment were one dollar and eighty-four cents. The order should, therefore, be modified by making opening the default and vacating the judgment conditional ujion the plaintiff’s paying ten dollars costs of opposing the motion, thirty dollars trial fees and one dollar and eighty-four cents disbursements on entering the judgment, and since no further- term fee can be taxed, ten dollars for an additional term fee, and as thus modified affirmed, with ten dollars costs and disbursements to appellant.

Ingraham, Clarke, Houghton and Soott, JJ., concurred.

Order modified as directed in opinion, and as modified affirmed, with ten dollars costs and disbursements to appellant. Settle order on notice.