p. 430Henry Clews and Others, Appellants, v. George Peper, Respondent.Headnote
Practice—opening default and vacating judgment—when affidavits insufficient^A judgment taken by default will not be opened on an answer making a general denial, and the affidavit of defendant’s attorney which fails to aver that the client has fully and fairly stated the facts constituting the defense and that the attorney, believes the facts to constitute a good and substantial .defense on the merits, and when there is no affidavit of the defendant nor explanation why such affidavit is not presented.
Appeal by the plaintiffs, Henry Clews and others, from an order of the Supreme Court, made at the New. York Special Term and ■entered in the office of the clerk of the county of New York on the. 28th day of February, 1906, opening a default and vacating a judgment entered upon an inquest.
Nathan D. Stern [Felix Jellenik, attorney] for the appellants.
John C. L. Daly, for the respondent.
This is an action brought to recover'a. balance claimed to be due to plaintiffs as brokers upon the "sale of certain shares of stock purchased by them for the account of the defendant and upon his request. The answer is a general denial.- Issue was . joined in 1901. The. case has been on the calendar since October, 1901. Having appeared upon the Friday call calendar it was moved for trial by the plaintiffs and thereafter duly appeared upon the day calendar of Trial Term, Part X, and upon the first day that it so appeared, the defendant not. appearing, it was marked for inquest for a subsequent day. It again appeared "upon the day calendar upon the adjourned day; and the defendant not appearing an. inquest was taken on said day, January 23, l906,.and judgment thereon entered on February 7, 1906. .
Thereafter the defendant obtained an order to show cause, returnable. on the sixteenth of February, why said inquest should not. be set aside and the judgment vacated. The defendant moved upon
p. 431the answer and an affidavit of defendant’s attorney. The moving papers are insufficient. The taking of an inquest and the" entering of judgment thereon are not mere idle ceremonies to he brushed aside for the mere asking. Parties seeking to be relieved from their defaults must show a reasonable excuse for, their neglect and must establish a meritorious case before they are entitled to the favor of the court. The affidavit of the attorney sets forth: “That the. defendant has a good and substantial defense to the merits of this cause" of action as shown by the answer of defendant, a copy of which is hereto annexed.” That answer is a general denial. The attorney does not aver that Ms client has stated to him fully and fairly the facts constituting his defense, nor give it as Ms professional opinion that upon such statement he believes that such facts constitute a good and substantial defense to the merits, nor is there any affidavit from the defendant himself, nor explanation why such affidavit is not presented. The relief prayed for should not have been granted upon these papers, and the order appealed from should be reversed, with ten dollars costs and disbursements, with leave, however, upon payment thereof, to renew the motion at Special Term upon further papers within ten days.
O’Brien, P. J., Patterson, Ingraham and Laughlin, J J., concurred.
Order reversed, with ten dollars costs and disbursements, and with leave to renew on terms stated in opinion. Order filed.