Joseph v. Kalmanowitz

Appeal from a judgment entered after default of appellants’ counsel in appearing until after a witness had been sworn and testified for respondent in a directed inquest, and from an order denying appellants’ motion to vacate the judgment and open the default. Judgment and order reversed on the law and the facts, without costs, and appellants’ motion to vacate their default and to set the case down for trial granted, without costs. It is our opinion that in the interest of justice a trial of the issues should be had, with both parties represented by counsel throughout. Under the circumstances here disclosed, the court should not have directed an inquest in the absence of appellants’ counsel, who was then in consultation with another Justice of the court about another action then on the ready calendar; and should have acceded to the request of respondent’s counsel, upon the return of appellants’ counsel to the courtroom, to expunge the testimony theretofore taken and to begin the trial anew. Carswell, Acting P. J., Johnston, Adel, Sneed and Wenzel, JJ., concur.