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Allegro v. Afton Village Corp.

Decided: March 24, 1952.


For reversal -- Justices Heher, Oliphant, Wachenfeld and Burling. For affirmance -- Chief Justice Vanderbilt. The opinion of the court was delivered by Oliphant, J. Vanderbilt, C.J. (dissenting).


The question involved here is, under the circumstances, did the court below exceed its discretion in refusing to grant an adjournment of the trial of the cause?

Plaintiff instituted suit on March 15, 1951, and in his complaint alleged a written agreement entered into with the defendant whereunder he was to do certain work for the defendant in return for a salary plus a percentage of profits. The complaint sought $40,000 in damages for breach of the contract and, in addition, certain equitable relief. The defendant answered denying any breach of the contract and setting up certain separate defenses, and in addition counterclaimed against the plaintiff for substantial amounts.

On June 8, 1951, the cause was pretried and the court directed counsel to prepare trial memorandums, exchange them and file same on or before September 23, 1951. The pretrial order fixed October 2, 1951, as the trial date. No trial memorandum was prepared or filed by the plaintiff.

On October 2, plaintiff appeared in court without counsel, he having withdrawn from the case shortly previous. Plaintiff advised the court he was without counsel, had not had the opportunity to retain other counsel, and requested an adjournment of the trial. This request was complied with on condition that plaintiff pay costs of $200 to reimburse the defendant for the loss suffered by the delay, which sum was paid. October 23 was then fixed as the new trial date and the court said to the plaintiff: "You should get yourself an attorney, a new attorney, and tell him that it will be necessary for him to file a trial memorandum here before October 15th."

Plaintiff contends he had New York counsel who was conversant with the case and who had charge of hiring new local counsel for him, but that he was then in California and did not return until October 10, 1951, when he conferred with him. They immediately endeavored to see and retain a certain member of the bar of this State. He was in West Virginia on a professional matter and did not return to his office in Newark until Saturday, October 20, 1951, on which

day he was retained. He immediately communicated with the defendant's attorney by telephone, advising him that he had been retained by the plaintiff but that it would be impossible for him to try the case on October 23 as he could not properly prepare it, and that he was due to be in the federal court on that day for the start of a trial which might last for several weeks. This telephone call was followed by a letter of the same tenor to the defendant's attorney.

On October 23, 1951, still another local attorney, at the request of the retained attorney, appeared, not to try the case but simply to request an adjournment, and he recited in substance the aforementioned facts. He advised the court that plaintiff's local counsel was actively engaged in the federal court at that time. The application for an adjournment was denied. The attitude of the court was expressed by the following statement it made:

"I think that Mr. Allegro got all the consideration he was entitled to when he was granted the adjournment the last time -- when the court lost time and the other side was put to great inconvenience. He was given three further weeks to prepare for today, and it was emphasized to him that the trial would go on today. He has had ample time to get another attorney. It may be that he has not used good judgment in taking the steps to get ready for trial today, but that is his misfortune. He has been under no misapprehension. It was made very clear to him three weeks ago that this case would go on for trial today and that he should move at once to get an attorney. And that means an attorney who would be available to try this case today. This Court cannot arrange its time to fit the convenience of any one litigant."

Counsel then asked leave to take the testimony of the plaintiff and his New York attorney in order to show, in detail, what steps had been taken to engage new counsel after the October 2 adjournment, and the circumstances surrounding that activity. This application was denied, whereupon plaintiff's New York attorney sought an opportunity to address the court, which refused to hear him.

The court then directed the plaintiff to proceed with his case or have it dismissed, but the plaintiff stated he was

incompetent to try his case and that therefore he could not proceed. The court then dismissed his complaint and directed the defendant to proceed on his counterclaim, which the plaintiff did not defend. After hearing the testimony the court awarded damages to the defendant in the sum of $4,700.

From the judgment entered thereon an appeal was taken to the Appellate Division, and before the cause came on for hearing there ...

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