Fuchs & Lang Manufacturing Co. v. Springer & Welty Co.

Majority

p. 443

The Fuchs & Lang Manufacturing Co., Respondent, v. The Springer & Welty Co., Appellant. (Two cases.)

(City Court o£ New York — General Term,

January, 1896.)

Headnote

Default—Conditions on opening.

A party cannot be required, as a condition of opening a default, to consent that the verdict upon the trial should be final and that no. appeal shall be taken therefrom.

Appeal by the defendant from a conditional order, made in each of the above two actions, opening the judgments obtained by default and allowing the defendant to come in and defend the action, dated September 27, 1895, and also from the final order in said actions, made October 8, 1895, denying the-defendant’s motion to open the default because of defendant’s, failure to comply with the conditions imposed upon it by the. first-named order.

Boothby & Warren, for appellant.

J. E. Ludden, for respondent.

The facts disclosed by the affidavits used on the-motion to open the judgment taken by default against the defendant show that the defendant was unable to meet its debts and that its property was sold by the sheriff under and by virtue of several executions issued upon judgments recovered by plaintiff and other creditors.

To grant the defendant’s motion to open the default without requiring it to furnish security of some sum to satisfy the-plaintiff’s claims, costs, disbursements, etc., would in effect defeat the plaintiff in the collection of its claim and give other-execution creditors a preference over plaintiff.

Under the circumstances the requirement of. the deposit with the clerk of this court of the sum mentioned in the order to secure the plaintiff’s claim, costs, disbursements and expenses of sale, as a condition of opening the default and setting aside the judgment and execution, was not unreasona

p. 444

ble, but the same was a fair exercise of the court’s discretionary power in the premises, and the same .should be sustained.

The other condition imposed upon the defendant by the terms of said order, viz., that it consent that the verdict of the jury upon the trial of the action should be final and no, appeal taken therefrom for any reason, affects a substantial right of which no litigant should be deprived.

We are, therefore, unable to sustain that part of the order.

Order of September 27,1895, appealed from, affirmed, without costs, except as to that part thereof which requires the defendant to consent that the verdict of the jury shall be final and no appeal taken therefrom for any reason. .

Let the defendant appellant have ten days from the date of the service of the order on this appeal within which to comply with the conditions of said order opening the default, and let the trial of the actions be set down for Monday, February 17, 1896. '

The conditional order of September 27, 1895, having been affirmed in part only, it follows that the final order of October 8, 1895, must be reversed. • The same is accordingly reversed, without costs.

McCarthy, J., concurs.

Conditional order affirmed in part and final order .reversed.