Year: 1869

Before Judges Clerke, Barnard and Cardozo.


Boues et al Us. DtG.-This case came up yester-
day on a motion to open the default At the last
term OF this court the case was the calendar on
an appeal from The judgment Of the Special Term.
The afldavits on the part Of the plaintiff set forth
that the attorney for the defendant was present
shortly before the case was called, and
when 1t was nearly reached left the
room. The attorney for defendant followed
him, and warned him his case was coming on, when
he answered he desired TO get his counsel. The
counsel Tor plantn returned to the court room and
when the case was actually cailed, s,ated the iact
fore his, thus throwing II over 10 the next day. He
notified defendants attorney OF tue facts but tue
taking a default plaintfr1s counsel procured an
order from the court directing him 10 submit his
papers and permitting the defendant 10 submit his
argument. The defendants attorney declined 20
submit his points and moved 10 open the for
q default before Judge CardoZo on the ground that
Mayor Han was deiendant's counsel and that he
called at taat time 70 Albany 70 attend before
one OF the Investigating committees. cross
motion was made before Mr. Justice Clerke Both
JUDGES declined TO interfere, Mr.. Justice Cardozo
sending the case 70 the General Term. The question
was argued yesterday by the Mayor behalf OF
the defendant and Mr. Thayer for the plaintiff


Mr.. Hall cOuteuded that the afdQyits showed that
the counsel for the defendant was called away by the
highest possible necessity, and as oral argument
was a right OF the defendant this was proper e1.
cuse. lie thought that the course taken In tnis suit
was an unprecedented one at the General Term and
borrowed from the Court OF Appeals practice IT, as
was even pretended, the counsel OF defendant were
guilty Of deep plottings, the Ruiltless defendant
should not be mulced. lie argued that the afldayits
sufficiently excused the defendant It was Tor the
convenience Of the court that tts question should
be argued orally since 1t involved novel ana Gier-
eeting considerations.


Mr.. Thayer stated that the order Of the General
Term was not a dcfaDt which would have taken the
case from the court; the case was still IN the
General Term. The motion was premature; II could
not be made tlll after the decision OF the Cen
eral Term. IL could only be made before the
judges who made the order ana knew the facts on
which they made II. One General Term could not
review an order made by another. This order was
now the law Of this case, and could not be corrected
by the Court Oi Appeals. That General Term had
taken the case for decision IL was o gross irregu-
lrlty Tor this General Term 20 take it away rom the
other term, and might result lH opposing 0rder4 lie
also contended that the andaus showed the de.
fault or absence Of the defendant TO have been In
bad faith. Thcy no doubt had no ground for II:
they thought they could pet q different decision from
this court than from the other


Judge Barnard asked If anything 70 that eject ap.
peared In his papers.


Mr.. Thaycr replied in the negative. but argued
that II was far deduction from the fact IN them
Such thing should receive the rebukc OF the Court.
IL would be the inauguration OF system OF choosing
by the method Of permitting defaults, one judge Tor
the trial Of case and avoiding another by party
who desire 20 do so. II the General Term might do
IL the Special Term might DO IT, and great source
OF scandal would be created.


Mr.. Han SAID that II there was anv sharp practice
In TINS case 10 was on the other side IL was the
lar practice where appellant made default TO
take an afirmance by default. This was an In
novatOn In the practice borrowed from the Court
OF Appeals He could wish that to be the prac.
tice Of the General form but IL never had BEEN He
thought the afildavts submitted by them showed
good iaith. But assuming that II was not so, and
Inat the case was regularly argued, II the General
Ien should decide against the plaintln, the paintn
could on this very ground OF iTregularity or innova
nninoVe unOn move LOT reaTgument and demand an oral


Decision reserved