Benedict v. Arnoux — 32 N.Y.S. 905

Majority

p. 905

BENEDICT et al. v. ARNOUX et al.

(Supreme Court, General Term, First Department.

March 15, 1895.)

Headnote

1. Judgment—Opening Default—Validity of Defense.

On an application to open a default suffered by mistake, and without laches, the validity of the proposed defense will not be passed on unless it is clearly frivolous.

2. Same—Unconscionable Defense.

An application to open a default will not be denied on the ground that the proposed defense is unconscionable.

Appeal from special term, New York county.

Action by Elias C. Benedict and others against George T. Arnoux and others to foreclose a mortgage. From an order denying a motion to open a default, and permit defendants to come in and answer, defendants appeal. Reversed.

Argued before VAN BRUNT, P. J., and FOLLETT, J.

W. W. Niles, for appellants.

C. N. Bouvee, Jr., for respondents.

Without passing upon the question as to the validity of any defense set up in the answer proposed to be served, we think that it is apparent that the default occurred through mistake, and that, by reason of such mistake, the defendants should not be deprived of the opportunity of raising the question, in a manner in which it can be reviewed, as to whether tbe answer sets up a defense or not. Where it is apparent that the default has been suffered through mistake, and there is no laches, it does not seem to be proper to pass upon the validity of any defense proposed to be interposed, unless it is clearly frivolous.

It is claimed, however, upon the part of the plaintiffs, that the proposed defense is an unconscionable one, whatever that may mean. The court of appeals has held that all defenses which are defenses are entitled to the same consideration by the court, and that a defense is a defense, whatever may be our private feelings in respect to it. We think, therefore, that the defendants should have been allowed to put in their answer upon payment of the costs of the motion and all costs which have been incurred in the action.

The order should be reversed, with $10 "costs and disbursements, and the defendants allowed to answer, upon paying the costs of the motion and the costs which had accrued in the action at the time of the making of the motion.