Van Hoven v. Faust Co. — 111 N.Y.S. 837

Majority

p. 837

VAN HOVEN v. FAUST CO.

(Supreme Court, Appellate Term.

June 30, 1908.)

Headnote

Appeal and Error—Reversal—Conditions.

Where the facility with which a defendant has repeatedly permitted defaults to be taken, and the feebleness of excuses therefor, suggest the suspicion that the real object in view is delay, an order denying a motion to set aside a default will be reversed only on terms more severe than usual.

Appeal from Municipal Court, Borough of Manhattan, First District.

Action by John H. Van Hoven against the Faust Company. From an order denying a motion to open a default, defendant appeals.

Reversed, and motion granted, on conditions.

Argued before GIRDERSREEVE, P. J., and MacREAN and SEA-BUR Y, JJ.

Douglas & Armitage, for appellant.

Ferdinand I. Haber, for respondent.

The facility with which defendant has repeatedly permitted its default to be taken, and the feebleness of its excuses therefor, suggest the suspicion that the real object'in view is delay. There are also technical defects in the moving papers. However, the appellate court is reluctant to deprive defendant of its day in court by affirming the order denying defendant’s motion to open its default. Somewhat heavy terms, nevertheless, must be imposed as a condition for opening the default.

The order is reversed without costs, and the motion granted, on payment by defendant to plaintiff of all costs in the case to date and the giving of an undertaking in the amount of $70 to secure plaintiff’s claim.