James v. McCreery — 7 N.Y.S. 494

Majority

p. 494

James v. McCreery.

(Supreme Court, General Term, First Department.

November 7, 1889.)

Headnote

Default Judgments—Opening—Laches.

A default will not be opened on motion, when the party making the motion has been guilty of great loches therein.

Appeal from circuit court, New York county.

Action by Edward F. James against James McCreery. Plaintiff was defaulted. From an order denying his motion to open the default he appeals.

Argued before Van Brunt, P. J., and Brády and Daniels, JJ.

F. F. James, pro se. Dunning <& Fowler, (W. F, Dunning, of counsel,) for respondent.

The appeal in this ease seems to have been based upon the idea that a default is to be opened in every case as a matter of course. The motion is, we think, a mistaken one, ánd such motions should not be granted where the party applying has been guilty of loches, or where the denial of the motion will not do, under all the circumstances, an irreparable injury to the party in default. ’ There is no good reason why all the damages arising from the negligence of a party or his attorney should be visited upon the opposing party to the action, as would be the case if defaults were to be opened as a matter of course. The plaintiff in this case has been guilty of great loches in the making of this motion, and should be remitted to a new action for the enforcement of his rights, if he has any. The order appealed from should be affirmed, with $10 costs and disbursements. All concur.