Bass v. Carley — 96 N.Y.S. 1023

Majority

p. 1023

BASS v. CARLEY.

(Supreme Court, Appellate Term.

December 21, 1905.)

Headnote

Judgments—Defaults—Application to Open.

Where defendant permitted five weeks to elapse from the entry of a default judgment against him before applying to have the same reopened, and was examined in supplementary proceedings, and requested and obtained an adjournment of his further examination therein, the application was properly denied.

[Ed. Note.—For cases in point, see vol. 30, Cent. Dig. Judgment, § 257.]

p. 1024

Appeal from Municipal Court, Borough of Manhattan, Eleventh District.

Action by Ottis Bass against Earle E. Carley. Erom an order denying his motion to open a default, defendant appeals.

Affirmed.

Argued before SCOTT, P. J., and BISCHOFE and MacLEAN, JJ.

M. E. Millilcen, for appellant.

Newman & Butler, for respondent.

The motion to open the default was properly denied. In view of the fact that the defendant permitted five weeks to elapse from the entry of judgment before making his application, and of his having been examined in supplementary proceedings, and having requested and obtained an adjournment of his further examination in those proceedings, there is little doubt that the motion was an afterthought, and not deemed to be necessary for the protection of any substantial rights possessed, by the defendant and affected by the judgment. The omission of an affidavit of merits was a defect which might, in a proper case, have been supplied on a renewal of the motion; but, under the circumstances, there was no error in the withholding of leave to renew. It is to be noted that the record before us contains nothing to suggest that the proof upon the inquest was at variance with the pleadings, as contended by the appellant.

Order affirmed, with costs.