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Van Arsdale v. King

33 N.Y.S. 858 Court N.Y. Gen. Term Decision date 1895-05-13 English

Delivered by DYKMAN, J.

Contents

Majority

p. 858
VAN ARSDALE v. KING.
(Supreme Court, General Term, Second Department.
May 13, 1895.)

Headnote

1. Judgment—Vacating Leave to Sue on—Laches.
A motion made in April, 1894, to vacate an order made in December, ■ 1890, granting leave to sue on a judgment, will be denied on the ground of laches..
2. Same—Irregularities.
An order permitting the service by mail of an 8 days’ notice instead of a 16 days’ notice of motion for leave to sue on a judgment is merely irregular.
Appeal from special term, Westchester county.
Action by William H. Van Arsdale against George King. In April, 1894, defendant moved to vacate an order made on December 6, 1890, granting leave to sue on a judgment rendered in favor of plaintiff against defendant in November, 1880. The moving papers presented two objections to the order: First, that defendant, when
p. 859
the preliminary order was made, on November 26, 1890, allowing service by mail of the notice of the application for leave to sue, was within the jurisdiction of the court, and could have been served personally with such notice; and, second, that the order permitted the service of notice to be made on or before the 28th of November, and the application to be made on the 6th of December,—that is, permitted service by mail in less than 16 days. The motion was denied, and defendant appeals.
Affirmed.
Argued before BROWN, P. J., and DYKMAN and CULLEN, JJ.
Norman A. Lawlor, for appellant
Isaac N. Mills, for respondent

This is an appeal from an order of the special term denying a motion to vacate an order made at the Westchester county special term on the 6th day of December, 1890, granting leave to bring this action, and to set aside and vacate all the proceedings subsequent thereto, including the judgment entered in this action.

The great delay in making this motion would be a sufficient justification of its denial. But, aside from the delay, the motion was entirely destitute of merit. At most, there was only irregularity in the original motion for leave to sue. The merits are all with the plaintiff, and no injustice has been wrought. The order should be affirmed, with $10 costs and disbursements. All concur.