Mayor of New-York v. Sands — 1 Cole. & Cai. Cas. 420

Majority

p. 420

The Mayor and Corporation of New-York v. Comfort Sands.

Headnote

PENDLETON moved to set aside a default and . judgment obtained on a penal ordinance by the corporation of the city of New- York, directing the defendant, as owner of certain vacant lots, to fill them up. The affidavit read denied his being owner.— It also set forth, that the defendant had, on that ground, applied by petition to be relieved, bu t before any answer was given, and whilst the application was pending, the default and judgment were entered.

Uarison,

contended that as the proceedings were regular, the petition ought not to have the effect of suspending them. The fact relied on as an excuse, was a legal defence, and might have been pleaded if true.

The proceedings complained of took place while a petition was pending, and there is,

p. 421

therefore, something of surprise. In addition to this, there are, in effect, merits disclosed. Let the default and judgment be set aside.