Meyer v. Mallon — 32 N.Y.S. 889

Majority

p. 889

MEYER v. MALLON et al.

(Supreme Court, General Term, Second Department.

March 5, 1895.)

Headnote

Mortgages—Opening Decree op Foreclosure—Laches.

An application to open a decree of foreclosure made 17 years after Its entry will be denied on the ground of laches, where the judgment roll contains an affidavit of personal service of the summons and complaint, the only contradiction of which is an affidavit made by defendant, on motion to open the decree, that, to'the best of her recollection, the summons and complaint were not served on her.

Appeal from special term.

Action by Caroline Meyer against Mary Mallon and another to foreclose a mortgage. Prom an order denying a motion of defendant Mallon to set aside a judgment of foreclosure and sale, and to permit her to answer, she appeals. Affirmed.

Argued before BROWN, P. J., and CULLEN, J.

Norman A. Lawlor, for appellant.

Martin J. Keogh, for respondents.

This is an appeal from an order of the special term

denying the application of the defendant Mallon to set aside a judgment of foreclosure and sale; and permit the defendant to answer. We think the application was properly denied, on the ground of the gross laches of the appellant. The judgment sought to be vacated was rendered on the 9th day of June, 1877. This application was not made until October, 1894, after a lapse of over 17 years. The judgment roll contains an affidavit of personal service of the summons and complaint upon the appellant, made by the plaintiff’s attorney, who has since deceased. This positive oath should outweigh the statement in appellant’s affidavit, which is simply to the effect that, to the very best of her recollection,° there were not any summons and complaint served upon her. The judgment was therefore regular, and now, after it has stood for this long period, and the sale made under it unchallenged, should not be opened.

The order appealed from should be affirmed, with $10 costs and disbursements.