Dovale v. Ackerman — 7 N.Y.S. 833

Majority

p. 833

Dovale v. Ackerman et al.

(Supreme Court, General Term, First Department.

December 2, 1889.)

Headnote

Judgment bt Default—Vacation—Reference.

On motion to vacate a judgment entered on defendant’s alleged default in answering plaintiff’s amended complaint, where defendant charges that his admission of service of such amended complaint was fraudulently altered by inserting the date, and plaintiff denies this, a reference should be had, to ascertain the fact;, and it is erroneous to deny the motion and open the default, on payment of costs, allowing the judgment to stand as security.

Appeal from special term, New York county.

Action by Eicot J. Dovale against Bernard L. Ackerman, Sr., and Bernard L. Ackerman, Jr., for money loaned. A judgment for plaintiff against the first-named defendant was entered on his alleged default in answering plaintiff’s amended complaint. He moved to vacate the judgment. His motion was denied, but the default was opened, and defendant was allowed to answer on payment of $10 costs; the judgment being allowed to stand as security. Defendant appeals.

Argued before Van Brunt, P. J., and Bartlett and Barrett, JJ.

Coudert Brothers, (W. F. Randel, of counsel,) for appellant. James M. Lyddy, for respondent.

The claim upon the part of the appellant is that the admission of service of the amended complaint herein was altered by the insertion of the date of May 20, 1889, in such admission. It is urged upon the part of the respondent that such is not the case, but that the date was inserted at the time of the signing of the admission in question. This condition of things presents a very serious question, which should have been attempted, in view of the contradictory nature of the evidence, to be solved by some sort of an oral hearing of the parties acquainted With the facts. The learned court below, in the decision of the case, was not prepared to adopt the forgery theory, or the claim that a willful default for the purposes of delay had been submitted to. We think that this question should have been sifted to the bottom, to ascertain as to who was in fault. If this date had been interlined, there is no question but that the defendants would be entitled to an order granting this motion to vacate the judgment without terms; and if this charge of alteration was made without evidence to sustain it, then the terms imposed were entirely inadequate. We think, upon an examination of these papers, that the order should be reversed, and that a reference should be had, to ascertain the fact whether or not this admission of service of the amended complaint has been fraudulently altered, as claimed by the appellant. Upon the coming in of this report of the referee, application may then

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be made to the special term for such relief as the nature of the report may warrant. Costs of this appeal should not be awarded to either party. All concur.