Majority
p. 174JOHN J. FELIN & CO., Inc., v. DE SANCTIS. (Supreme Court, Appellate Term, First Department. May 26, 1916.) Argued May term, 1916, before GUY, BIJUR, and COHALAN, JJ.
Headnote
Judgment @=>138(1)—Opening Default.Where defendant in default judgment apparently attempted in good faith to serve his answer on time, having no attorney, and submitted a verified answer denying all and admitting part of the debt, default will be opened on condition.
[Ed. Note.—For other cases, see Judgment, Cent. Dig. §§ 249-251; Dec. Dig. @=>138(1).] <gE5>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes
Appeal from Municipal Court, Borough of Manhattan, First District.
Action by John J. Felin & Co., Incorporated, against Louis De Sanctis. From an order of the Municipal Court, denying motion to open a default, defendant appeals. Reversed, and default opened on condition.
Louis Levy, of New York City, for appellant.
A. H. Brown, of Syracuse, for respondent.
The defendant in this case seems to have acted in good faith in attempting to serve his answer in time, although perhaps ignorant, he having no attorney at the time, as to what was actually re
p. 175
quired of him. He submitted, on his motion to open his default, a verified answer in which he positively denied owing the plaintiff the entire amount claimed, but admits an indebtedness of $38. We think the order should be reversed, and the default opened, upon condition that he give an undertaking in the sum of $200, conditioned that he will pay any judgment and costs that may be rendered against him; otherwise, order affirmed, with $10 costs.