Nussbaum v. Schwager

The action of defendants, who are attorneys, in walking out of the courtroom after being directed to proceed to trial on a case which had been marked ‘ ‘ Peremptorily against defendants ” on their own consent, constituted a willful abandonment and not a default.

Moreover, the same affidavit that was submitted to the Trial Judge, who rejected the excuse offered therein as a basis for adjournment, was presented to the Judge who heard and granted the application to open the default.

We are not persuaded that defendants’ affidavit shows a meritorious defense or an acceptable excuse for refusing to pay the amount claimed by plaintiff, and, under all the circumstances here, the granting of defendants’ application was an improper exercise of discretion.

The order should be reversed, with $10 costs, motion denied and judgment after inquest reinstated.

Concur — Hecht, J. P., Hofstadteb, and Gold, JJ.

Order reversed, etc.