Morris v. Kahn — 62 N.Y.S. 1040

Majority

p. 1040

MORRIS et al. v. KAHN.

(Oity Court of New York, General Term.

March 2, 1900.)

Headnote

Default Judgment—Fraud—Motion to Open—Affidavit of Merits—Necessity.

Where defendant was served with a summons only, containing an indorsement that judgment for a specified' sum would he entered against him on his failure to appear or answer, which sum he conceded to be due, and judgment was entered by default on a complaint charging him with fraud, of which he was not advised, and he was thereafter arrested on an execution against his person, defendant was entitled to order opening the default to enable him to disprove such fraud, though he had filed no affidavit of merits.

Appeal from special term.

Action by Nelson Morris and others against Bernhard Kahn. From an order opening a default judgment against defendant, plaintiffs appeal.

Affirmed.

Argued before FITZSIMONS, C. J., and CONLAN, J.

H. B. Bradbury, for appellants.

A. H. Purdy, for respondent.

This is an appeal from an order opening the defendant’s default. The summons was served without any complaint, and contained the usual indorsement in such cases, that, upon default to appear or answer, judgment for a specified sum would be taken. Conceding the amount demanded to be due as upon contract, and not being authorized or advised of the gravamen .of any complaint, the defendant-was advised that a defense to the action would be useless, unless, perhaps, it was desirable to delay a judgment. Failing to appear or answer, therefore, a judgment was entered upon a complaint charging fraud, and upon such judgment the defendant was arrested upon an execution issued against his person. The office of an affidavit of merits is to advise the court that the defendant has a defense to the cause of action, or some part of it, which, if proven, would tend to defeat the amount sought to be recovered; and, conceding the amount to be due as claimed, it would seem that an affidavit of that character could hardly, with reason, be interposed. We think the matter was well within the discretion of the justice who granted the order at the special term, and that the •defendant was clearly entitled to an opportunity to disprove the charge of fraud alleged in the complaint, and that the discretion was not unreasonably exercised to the prejudice of the plaintiff, and are therefore of the opinion that the order appealed from should be affirmed, with costs.

FITZSIMONS, O. J., concurs.