Holmes Elec. Protective Co. v. D'Amico
| Decision Date | 26 March 1962 |
| Citation | 226 N.Y.S.2d 297,33 Misc.2d 573 |
| Parties | HOLMES ELECTRIC PROTECTIVE COMPANY, Plaintiff, v. Sebastiano D'AMICO, Defendant. |
| Court | New York City Municipal Court |
Field & Stockel, New York City, for plaintiff, Jacob Spatz, New York City, of counsel.
Thomas F. Keane, Brooklyn, for defendant.
This is a motion by the defendant to open its default upon trial; to vacate the inquest taken upon said default and to cancel and set aside the judgment entered thereon.
On February, 7, 1962, this cause regularly came on for a pre-trial conference before this court in Part 21. An attempt to settle the action at pre-trial having failed, February 15, 1962, at 2 P.M., was fixed for trial before this court in Part 21, and counsel were advised that the matter was being set down peremptorily against both sides. Special arrangements were thereafter made for the assignment of a panel of jurors to Part 21 for the trial of this action.
On February 15, at 2 P.M., the date and time fixed for trial, the plaintiff accompanied by his counsel and witnesses appeared before this court ready to proceed to trial. The defendant was not present, nor was he represented by counsel. Instead, one William Gardella appeared in defendant's behalf seeking an adjournment. In his affidavit in support of the application for an adjournment, Mr. Gardella stated that he was a representative of the office of the attorney for the defendant; that he had personal knowledge of the facts therein set forth, which were obtained from the defendant's family and that the defendant was not available for trial since he was then in Florida and would not return therefrom until April, 1962 . This court thereupon questioned Mr. Gardella and was informed by him that he was not an attorney, but an adjuster employed by the office of the attorney for the defendant. Upon further inquiry, Mr. Gardella admitted that at no time prior to February 15, did his office advise the attorney for the plaintiff that it would not be ready to proceed to trial on that date; that his office had not advised the defendant by telephone or letter that he would be required to appear for trial on February 15, and that his office ascertained for the first time that the defendant was not available for trial on February 14, 1962, at 6:30 P.M., after having then attempted to reach the defendant by telephone.
Upon the foregoing facts and circumstances, the defendant's application for an adjournment was denied, and Mr. Gardella was instructed to communicate with his office by telephone and so advise it. After telephoning, Mr. Gardella returned to the courtroom and advised the court that his office had no attorney available to defend the action. Thereupon plaintiff's attorney was asked by this court what expense had been incurred by the plaintiff in having its witnesses appear for trial, and upon being advised that...
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