Morris v. Kahn — 31 Misc. 25

Majority

p. 25

Nelson Morris et al., Appellants, v. Bernard Kahn, Respondent.

(City Court of New York, General Term,

March, 1900.)

Headnote

Default — Opened, where the summons demanded money and the judgment authorized arrest.-

Where an action is begun by a summons, with a notice that on default judgment will be taken for a specified sum of money, and, after-the defendant has defaulted, judgment is entered against him upon a complaint filed charging fraud, and he is subsequently arrested upon an execution issued against his person, his default will be opened, on terms, in order that he may contest the charge of fraud, although he never filed an affidavit of merits, he conceding the debt to be due and unpaid.

Appeal from an order made at a Special Term of the Oity Court of the city of New York, opening the defendant’s default on terms..

The action was for fraud, in making a false written statement,.

p. 26

upon the strength of which credit was extended to the defendant. Ro affidavit of merits was or had heen served.

H. B. Bradbury, for appellants.

A. H. Purdy, for respondent.

This is an appeal from an order opening the defendant’s default. The summons was served without any complaint, and contained the usual indorsement in such cases, that upon default to appear or answer, judgment for a specified sum would be taken. Conceding the amount demanded to be due, as upon contract, and not being authorized or advised of the gravamen of any complaint, the defendant was advised that a defense to the action would be useless, unless, perhaps, it was desired to delay a judgment. Failing to appear or answer, therefore, a judgment was entered upon a complaint, charging fraud, and upon such judgment the defendant was arrested upon an execution issued against his person. The office of an affidavit of merits is to advise the court that the defendant has a defense to the cause of action, or some part of it, which, if proven, would tend to defeat the amount sought to be recovered. And conceding the amount to be due, as claimed, it would seem that an affidavit of that character could hardly with reason be interposed. We think the matter was well within the discretion of the justice who granted the order at the Special Term, and that the defendant was clearly entitled to an opportunity to disprove the charge of fraud alleged in the complaint, and that the discretion was not unreasonably exercised to the prejudice of the plaintiffs, and are, therefore, of the opinión that the order appealed from should be affirmed, with costs.

Fitzsimons, Oh. J., concurs.

Order affirmed, with costs.