McCormick v. Stivers

The allegation in the moving affidavit that defendant’s attorney, not being able to find the cause upon the printed calendar, wrote to plaintiff’s attorney in reference thereto, offering to attend and try the cause upon a day to be fixed, and that he received no response to his letter, is not in any way controverted or explained. Taken in connection with the other facts, it shows that defendant's attorney was not guilty of any negligence. The expenses of trial were caused by failure of plaintiff’s attorney to comply with the reasonable *875suggestion of defendant’s attorney, and by allowing him to continue in the belief that the cause would not be moved during that term.

The order appealed from should be affirmed, but without costs.

Barnard, P. J., and Dykman, J., concur.