People ex rel. City of Mt. Vernon v. Brett — 79 N.Y.S. 709

Majority

p. 709

PEOPLE ex rel. CITY OF MT. VERNON v. BRETT.

(Supreme Court, Appellate Division, Second Department.

January 9, 1903.)

Headnote

1. Judgments—Default—Application to Open.

Where default was entered on an application for mandamus, and an application to open the default was made in good faith, and alleged that respondent’s counsel at the time of the default was absent from the county on his wedding trip, and that the two days allowed in respondent’s absence were insufficient for a proper presentation of his case, an ordfer denying the motion was erroneous.

If 1. See Judgment, vol. 30, Cent. Dig. § 287.

p. 710

Appeal from special term, Westchester county.

Mandamus by the people, on relation of the city of Mt. Vernon, • against John H. Brett, individually, and as the late receiver of taxes ■and assessments of such city. From an order denying respondent’s motion to open his default and allow him to come in and defend the proceedings, he appeals. Reversed.

Argued before GOODRICH, P. J„ and BARTLETT, JENKS, WOODWARD, and HIRSCHBERG, JJ.

• John F. Brennan, for appellant.

William J. Marshall, for respondent.

The appellant’s motion appéars to have been made in entire good faith, and the papers disclose no good reason why it should have been denied. His counsel was absent from the county on his wedding trip when the original motion was returnable, and the brief time (two days) allowed by the learned special term in the appellant’s absence proved entirely unavailing for a proper exhibition of his side of the controversy on the merits. We think he should be allowed his day in court, and that the order appealed from should be reversed, with $io costs and disbursements, and the motion granted.