Isley v. Gilbert — 113 N.Y.S. 1134

Majority

p. 1134

ISLEY v. GILBERT et al.

(Supreme Court, Appellate Division, Second Department,

December 30, 1908.)

Headnote

Appeal from Special Term, Kings County. Action by John Isley against Maurice Gilbert and another. From an order opening a default in answering, and vacating a judgment, plaintiff appeals. Affirmed. Charles Foley, for appellant. Harry Cook, for respondent Gilbert., Alonzo G. McLaughlin (Leo C. Stern, on the brief), for respondent Brooklyn & Long Island Realty Company.

This is an appeal by the plaintiff from an order opening a default to answer, and vacating the judgment, which is to foreclose a mechanic’s lien. The attorney for the plaintiff seeks to cast odium on the learned judge who made the order by saying that be granted the motion notwithstanding that anoth

p. 1135

er judge at Special Term had previously denied it, and capital letters are resorted to so that this may be made plain to us. The answer to this statement is that when the record is examined it is found not to be true. The defendant Gilbert’s motion was previously denied by another judge, but the motion now before us was made by the other defendant. The subjecting of judges to false criticism of this kind deserves severe reproof. It is always regrettable to find statements in a brief which are not in accordance with the record and are calculated to mislead. Moreover, the order and papers on the previous motion were not produced at all on the present motion, nor was the learned justice informed of them by affidavit. In order to give color to his unfounded criticism, however, the plaintiff’s attorney has included them in the appeal' record. The order should be affirmed.