Hart v. Cram — 124 A.D. 487

Majority

p. 487

Joseph D. Hart, Respondent, v. Jacob Cram, Appellant.

First Department,

February 21, 1908.

Headnote

Practice —judgment by default opened.

Defendant’s default in an action to recover for legal services rendered, opened ■with leave to plead, upon payment of costs imposed under a former order and disbursements on entering judgment, with ten dollars costs of motion, the judgment to stand as security for any recovery by the plaintiff.

Appeal by the defendant, Jacob Cram, 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 26th day of Hovember, 1907, denying the defendant’s motion to vacate an order which denied his motion to set aside a judgment entered against him by default, unless he paid fifteen dollars costs before notice of trial and ten dollars costs of motion within five days, and for leave to renew said motion and to open his default and to vacate the judgment.

Sidney Harris [ William S. Woodhull with him on the brief], for the appellant.

David Tim, for the respondent.

The plaintiff is an attorney and counselor, and he brought this action to recover $20,000 for legal services alleged to have been performed for the defendant. The defendant failed to appear and judgment was taken against him by default on the 15th day of January, 1904, for the sum of $20,000 damages and $89.85 costs, The moving papers tend to show that the defendant was unable to comply with the conditions of a prior order opening the default, and' of the order which he seeks to vacate. He does not show proper diligence in making the motion, but he does show' that he was not indebted to the plaintiff for legal services, and that there was no ground for the recovery of the judgment. His affidavit in this respect is not met by the plaintiff,' who, instead of showing justification for this' large judgment against his client,, otherwise than by alleged admissions of the latter, indulges in improper state-

p. 488

merits. refiectirig seriously on the moráis of his client, apparently upon the theory'of contradicting his affidavit, that he was without means to pay the expenses incident to opening the default. The immorality of the defendant is no justification for holding an unconscionable, judgment against him.

It follows that-the order should be reversed, hut without costs or disbursements,- and motion to vacate order and for leave to renew motion granted and default opened and leave granted defendant to plead within, ten days upon payment of twenty-five dollars costs imposed under the former order, the disbursements on entering the judgment and ten dollars costs of the motion, the judgment; to stand as security for any recovery herein by plaintiff.

Patterson, . P. J., Ingraham, Clarke and Houghton, JJ., concurred. '.

Order reversed, without costs, and motion granted on the terms stated in opinion. Settle order on notice.