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Hornthal v. Finelite

29 N.Y.S. 686 Court N.Y. City Ct. Decision date 1894-06-20 English

Delivered by FITZSIMONS, J.

Contents

Majority

p. 686
HORNTHAL et al. v. FINELITE et al.
(City Court of New York, General Term.
June 20, 1894.)

Headnote

Opening Default—Discretion op Judge.
An order which requires an undertaking as a condition of opening a default will not be disturbed unless it appears that the judge acted unfairly, arbitrarily, or otherwise abused his discretion.
Appeal from special term.
Action by Lewis M. Hornthal and others against Jacob Finelite and others. From so much of an order opening a default as imposed terms, defendants appeal.
Affirmed.
Argued before FITZSIMCXNS, HEWBURGER, and CONLAtsT, JJ.
Hoadly, Lauterbach ,& Johnson, for appellants.
Morris Goodhardt, for respondents.

This is an appeal from an order opening defendant’s default and failure to appear and answer, upon the ground that the terms imposed by said order work a hardship upon him. The order required him “to give an undertaking to secure any judgment that might be obtained herein.” This order must be sustained, unless it appears that the special term justice acted unfairly, arbitrarily, or otherwise improperly exercised or abused the discretion he had a right to exercise. We have carefully examined the appeal record, and find that after the defendant made the note upon which this action is based he transferred his property to his wife, and other members of his family, evidently for the purpose of preventing his future judgment creditors from levying upon the same. Besides, he swore that he was not served with the summons and complaint herein, when, no doubt, he was served. Besides, his | proposed defense (insanity at the time he signed the note in suit) is rather, in our judgment, of doubtful merit. Under these circumstances the special term justice was not only right in making the order in question, but it was his duty to do so. In fact, he should have denied defendant’s application to defend this action, and, if such an order had been made, we should have sustained it. Order appealed from is affirmed, with costs. All concur.