Cullen, J.This is an appeal from an order denying a motion to open a default taken by the defendant at circuit. The judgment entered will not preclude the plaintiff from enforcing any cause of action he may have. A dismissal of the complaint by default or nonsuit after evidence in an action at law is no bar to a new action for the same cause. Wheeler v. Ruckman, 51 N. Y. 391. If it were otherwise, the action being in ejectment, the plaintiff is entitled teta second trial as a matter of right, on payment of the costs of the *956action. The effect of the order appealed from is therefore the same as if the motion had been granted upon payment of all the costs in the action. The imposition of such terms was entirely proper. The affidavits of the defendant show a long and persistent effort on her part to force the cause to trial, and an equally persistent struggle on the part of the plaintiff to avoid a trial. The fact that on the particular day upon which the default was taken the counsel for plaintiff was in attendance at another court is not decisive of his right to a postponement. His representative stated at circuit that, even when discharged from attendance under the subpoena, the counsel would not be able to try the cause. After such a statement, it was not necessary or proper to hold the cause until another day. The order appealed from should be affirmed, with $10 costs and disbursements. All concur.