Oneida National Bank of Utica v. Stokes

By the Court, Cardozo, J. In the month of March, 1870, this cause having been noticed by the plaintiff as well as by the defendants, judgment by default was granted [510] in favor of the defendants. That default was opened by Judge Ingraham, in April, 1870, upon terms, which included setting the case down for trial for the fourth Monday of April, at special term. The terms upon which the default was opened were discretionary, and no point can be raised under them against the regularity of the trial in April, unless, indeed, the cause was not in such condition as to issue, as to be triable. If the cause were at issue, then, whether it had been noticed or not, would be wholly unimportant, if the judge saw fit to include going to trial as one of the conditions of opening the default. I do not think it necessary to determine, on this appeal, whether the cause could properly be brought to trial as against one defendant, when not at issue as to the others, when no previous order for a separate trial had been allowed by the court, (Qode, § 258 ;) because I think the plaintiff, by noticing the cause for trial, at the March term, must be considered as admitting that the cause was at issue, at ' that time, and is estopped by that act from objecting that issue was.not joined. Until issue joined, the plaintiff had no right to notice the action for trial, (Oode, § 256;) and after having brought the defendants to court upon his (the plaintiff’s) notice, I think the latter cannot be heard to say that they had been improperly brought there, if the defendants do not see fit to make the objection. I may add, that no possible harm or injustice could have been worked to the plaintiff, in this case, by the trial proceeding before issue was joined as to the Manhattan Savings Institution; because the judge below has found, and we think his findings justified by the evidence, that the property sought to be reached belonged to Mrs. Stokes; and that being so, the plaintiff could have no relief against any one. Although an appeal lies from an order for an allowance, yet when the allowance is granted at the trial, by the judge then presiding, who has seen and can best appreciate [511] whether it is a difficult and extraordinary action, it must be a very glaring case of an excessive allowance, which can justify interference with his discretion, by an appellate tribunal. That cannot be said to be the case here. [First Department, General Term, at New York, February 7, 1871. Judgment affirmed. Ingraham, P. J. and. Cardozo, Justice.]