Duche v. Voisin — 18 Abb. N. Cas. 358

Majority

p. 358

DUCHE v. VOISIN.

N. Y. Supreme Court, First District, Chambers ;

March, 1887.

Headnote

1. Service of summons by publication ; defendant's return before publication complete.] Where an order for publication of summons is duly and regularly made in an action in which an attachment is ¡ issued upon the ground of departure from the State with intent to defraud creditors, and the publication is continued for the period required by the statute, the return of the defendant to the State, before the time for publication expires, docs not affect the plaintiff's right to enter judgment upon his default, or require personal service of the summons upon him; and he can be permitted to come in and defend only as a matter of favor.^[1]

2. Affidavit of merits.] An affidavit of merits alleging that defendant

p. 359

“ has a good and valid defense upon the merits to the whole of said plaintiff’s claim in this action, and that he is not indebted to the plaintiff in the amount claimed in the complaint, or in any amount whatsoever,” is insufficient upon an application to open a default; but the court may, nevertheless, allow the default to be opened upon terms.

Motion to open judgment by default, and for leave to come in and defend.

This action was brought upon an account stated. On October 23, 1886, the plaintiff procured an attachment of defendant’s property upon the ground that he had departed from the State with intent to defraud his creditors, and an order for publication of summons was duly made. Upon the completion of the service of summons by publication for the requisite period, judgment was entered against the defendant by default, January 14, 1887. Subsequently the defendant made this application to open the default, alleging “ that no service of the said summons was at any time, or in any manner, personally made upon this defendant, although this defendant was present in the city of New York, and his presence in said city known to the plaintiff and his attorney, long before entry of the said judgment; ” that he did not see the publication of summons, and knew nothing of it, “ until some time in January,” when he learned that plaintiff claimed that such service had been made upon him.

Defendant’s affidavit stated also “ that he has a good and valid defense upon the merits to the whole of said plaintiff’s claim in this action, and that he is not indebted to the' plaintiff in the amount claimed in the complaint, or in any amount whatsoever ; ” and that plaintiff had refused, upon his request, to allow the default to be opened.

Coudeit Brothers, for the defendant and the motion, contended among other things, that service by publication was void, because defendant returned to New York before entry of the judgment, and before, the expiration of his time to answer the complaint..

p. 360

Herbert W. Grindal, for the plaintiff, opposed.

It does not appear from the papers when the defendant returned to the city. The order for publication, for aught that appears, was duly and regularly made, and, even if defendant returned before the time for publication expired, there is no provision of the Code, so far as I am aware, which made it necessary that the papers should be served upon the defendant personally because of such a return. The judgment was regularly entered, and the defendant can only come in as matter of favor.

No proper affidavit of merits is presented, nor is any very good reason given why the default should be opened. Still, the defendant himself swears that he has a defense, and perhaps he should be allowed to defend on terms.^[1]

The default will be opened so far as to permit the defendant to serve an answer, the judgment to stand as security, upon the payment of all disbursements made by the plaintiff, and $10 costs of this motion.

Order to be settled on notice.

* The rule generally applied by the justices of the first district, is that a plaintiffs default should always be opened; the only question on motion to open such a default usually being as to the terms to be imposed as a condition of granting the relief. In Henry Prouse Co. v. Findley (53 Super. Ct. [J. & S.] 524), a motion to open a default by defendant, was held properly denied in the discretion of the court, the statements as to defendant’s reasons for not opposing being vague and indefinite, and his affidavit of merits more than counter-balanced by opposing affidavits.