Board of Commissioners v. Hollister — 2 Hilt. 588

Majority

p. 588

The Board of Commissioners of Excise of the city and county of New York v. David M. Hollister.

Headnote

A judgment obtained by default, and through inadvertence on the part of the defendant, will be opened, and a defence permitted, where he excuses his neglect and swears to merits.

Upon a motion for that purpose, where the defence is disclosed, and it appears that it is intended to be interposed in good faith, and is not clearly unjust or frivolous, the court will not decide whether it will prevail if established upon a formal trial of the action.

At Special Term, April 2, 1860.

Motion to open a judgment entered by default, and for leave to the defendant to answer. The action was to recover of the defendant the penalties imposed by law for selling liquors, in quantities less than five gallons at a time, without a license. In addition to the usual affidavit of merits, the defendant read, upon the motion, an affidavit excusing his neglect, and stated in it that his business consisted in part of selling liquors in large quantities ; that he did, at times, sell wines—such as champagne, &c.'— by the basket, but never sold less than five gallons in the aggregate to any one person, although that quantity was often composed of different kinds of wines or liquors, each kind being less than five gallons. It was contended, on the part of the plaintiffs, that -this was a violation of the excise law, and therefore the affidavit disclosed no defence to the action.

John H. White, for the motion.

John B. Holmes and William McKeag, opposed.

Upon a motion to open a judgment entered against a defendant by default, and through his inadvertence, we do not determine absolutely whether the defence he desires to interpose will necessarily prevail at the trial, but merely look into it so far as to be able to say that it is not clearly frivolous ;

p. 589

and then if, in addition, we are satisfied that it is set up in good faith, and the neglect of the party is satisfactorily excused, it is almost a matter of course to permit him to come in and answer.

I see no reason for departing from this general practice in the present case, and therefore must decline passing upon the defence disclosed in the motion papers, as requested by the plaintiff’s counsel, and content myself with merely saying that, in my opinion, the defence is clearly not frivolous.

'The motion, therefore, to vacate the judgment, and for leave to answer, is granted on payment of $10 costs of the motion, and the disbursements in entering the judgment.

Ordered accordingly.