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London v. Schneider

137 N.Y.S. 694 Court Argued October term,- 1912, before SEABURY, GUY, and BI-JUR, JJ. Decision date 1912-10-23 English

Delivered by BIJUR, J.

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p. 694
LONDON v. SCHNEIDER et al.
(Supreme Court, Appellate Term, Eirst Department.
October 23, 1912.)

Headnote

Judgment (§ 145*)—Deeault—Vacation.
Vacation of a default is error where it appears that the default was deliberate, and that the defense relied upon is palpably unavailable as a matter of law. . ,
[Ed. Note.—For other cases, see Judgment, Cent. Dig. §§ 271, 292-295; Dec. Dig. § 145.*]
•Eor other cases see same topic & § ntjmbeb in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
Appeal from City Court of New York, Special Term.
Action by Daniel London against Ignatz Schneider and another. From an order opening defendants’ default, plaintiff appeals.
Reversed, and motion denied.
Argued October term,- 1912, before SEABURY, GUY, and BI-JUR, JJ.
Joseph Gans, of New York City, for appellant.
Nathan Greenbaum, of New York City, for respondents.

.The respondents were sureties on an undertaking on appeal. After the appeal had been dismissed, and after repeated demands for payment on the respondents, appellant brought suit for some $500 due on the undertaking. Thereafter respondents, by their

p. 695
attorneys, paid .plaintiff’s attorneys $200. This they now claim to have been in full. In passing, it may be remarked that one of their then attorneys presents an affidavit denying that fact.

Subsequently, after further demands for payment of the balance of the amount due, plaintiff entered judgment for the full amount upon which they have acknowledged the $200 due. Not only does the default opened by this order appear to have been deliberate and intentional, but the defense sought to be introduced upon the opening is palpably unavailable as matter of law under the circumstances disclosed by the moving papers. See Nassoiy v. Tomlinson, 148 N. Y. 330 , 42 N. E. 715 , 51 Am. St Rep. 695 ; Laroe v. Sugar Loaf Dairy Co., 180 N. Y. 367 , 73 N. E. 61 . .

Order reversed, with $10 costs and disbursements, motion denied, with $10Dcosts, and judgment reinstated. All concur.

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