SEYMOUR a. ELMER

SEYMOUR a. ELMER. New York Common Pleas; General Term, April, 1855. Default in Justice’s Court.—Proof of “Manifest Injustice.” Defendant’s attorney having suffered default in a district court by being delayed in arriving at court by circumstances liable to occur without his fault, he being under the misapprehension that no defaults were taken until an half hour after the return hour of the summons ; held, that the default was excusable. The only witness for plaintiff having been the assignor of the claim sued on, an affidavit by the defendant that injustice was done to him by the judgment in default, held, under certain circumstances sufficient upon that point, in a motion to open the judgment. Application to open a judgment of a district court. The plaintiff sued for rent as assignee of the lessor. Suit was brought in the Justice’s court of the 4th Judicial District. It appeared from the return of the justice and the affidavits, that upon the return day of the summons, the case was called very soon after 9 o’clock, that being the hour named in the summons. The defendant did not appear. The plaintiff proceeded, and called and examined his only witness, the assignor. The justice thereupon gave judgment for the plaintiff. Soon after such judgment had been rendered, and it being then only about 15 minutes past 9, the defendant’s attorney arrived. He, supposing that it was the practice of the court to take no defaults until half an hour after the time named in the summons, had been detained a few moments upon his way to the court by meeting a client and conversing with him respecting the transaction of certain of his legal business on that day. On coming into court at about quarter past nine, he informed the justice that he appeared for the defendant. The plaintiff’s attorney meanwhile had procured a transcript of his judgment from the clerk. The justice informed defendant’s attorney that judgment had been given, but that he would open the default if the plaintiff’s attorney, who had not yet left the court room, would consent. Defendant’s attorney then applied to plaintiff’s attorney, offering to make an affidavit of merits and pay the costs of the default; but the request was ■ refused. The justice thereupon declined to open the default. The defendant appealed. Thomas S. Somers for Appellant. FramMim Brown for Eespondent. [MAJORITY — Woodruff, J.] Woodruff, J. The absence of the defendant’s counsel at the time this cause was called for trial, arose from circumstances liable to occur without any fault on his part, and the misapprehension under which he was delayed for fifteen minutes after the hour at which the summons was returnable, considered in connection with the fact that the plaintiff’s counsel and witness were still in court, and the court willing to take up the cause if the plaintiff’s counsel would consent, seem to me sufficiently to excuse the default. Upon the question whether manifest injustice has been done, the case is not quite so clear. If the facts sworn to by the defendant are true, then injustice is manifestly done by the judgment; and, on the other hand, if the statements of the assignor of the plaintiff are true, the judgment is just. We have heretofore considered that where it appeared by the papers that the plaintiff’s case was established by an indifferent witness, and nothing appeared on the part of the defendant bnt his own unsupported oath, where he could not himself be a witness on the trial, it would be of no avail to order a new trial, since we were not advised that the result of a new trial could be other than the result of the first, nor in such case could it be apparent that injustice was done. In this case the assignor of the plaintiff declares himself to be the representative of the plaintiff in the matter of the suit. It is not certain but the assignor may prove to be himself incompetent, and if not, his testimony in the relation he occupies will be received with caution, and if examined, the defendant himself will be a competent witness'-to the same matter. Though not without some hesitation, I have come to the conclusion that a new trial should be ordered upon terms. The defendant must waive any claim (if any he have) to restitution of the costs paid on appealing, and must pay the respondent’s costs on appeal, and the parties must appear before the justice on the fifteenth day of May next, at 10 o’clock, A. M., and proceed with the trial at that time, or on such days as the justice of the district court may by adjournment appoint.