Majority
p. 445Myndert Lansing v. David Horner.
Headnote
EMOTTmoved to set aside the default entered the 21st of January last, and the judgment and execution thereon, upon the affidavit of the defendant swearing to merits, and one from his attorney, stating that notice of retainer and of special bail had been in due time transmitted with the bail-piece by the mail, to his agent in Albany, desiring him to serve them on the attorney of the plaintiff, and that he himself had never received a declaration.
p. 446read an affidavit, setting forth that he had never received any notice of retainer or bail, and that he had proceeded regularly.
Bleccker, contra,
As the papers were sent to the party’s own agent, why does not he show that he has not received them ? This was his duty, and the not doing so is a palpable neglect. There is also a loches in not applying last term. The defendant can take nothing by his motion.