Comer v. Wrisley — 1 N.Y. St. Rep. 778

Majority

p. 778

JOSEPH COMER v. FRANK WRISLEY.

Headnote

Order opening defendant’s default, reviving the action in name of

ADMINISTRATRIX, AND ALLOWING SERVICE OF SUPPLEMENTAL ANSWER

SETTING UP DISCHARGE IN BANKRUPTCY—SUCH ORDER DISCRETIONARY—

When discretion not improperly exercised.

Appeal from an order made at special term opening defendant’s default, and reviving the action in the name of the defendant’s administratrix, and allowing her to serve a • supplemental answer, setting up a discharge in bank ruptcy of the original defendant, in his lifetime.

The order made at special term was a discretionary one, and we have only to determine whether that discretion was improperly exercised. The action was begun in 1873, on a promissory note then nine years overdue. The defendant filed a verified answer in April, 1873. Plaintiff took no steps to bring the action to trial for three years, except filing a note of issue and serving a notice of trial.

7he case was twice called in 1875, when plaintiff failed to appear. It was again on the calendar in June, 1876, when plaintiff took defendant’s default,

p. 779

but did not enter judgment until February 12, 1880, three years after the default. In the meantime, and on February 28, 1877, defendant received his discharge in bankruptcy. It is admitted that no notice in writing of the entry of said judgment was ever served upon the defendant or his administratrix. No execution was ever issued on the judgment.

Defendant departed this life on the 12th day of March, 1884, being at the time part proprietor of the Victoria hotel, in this city. As far as appears, no efforts were made to collect this judgment during defendant’s lifetime, although he was apparently in the possession of property.

The application to open the default, and for leave to serve supplemental answer was not made until Ocf/ber, 1885 After defendant’s death, and before making the present application, the defendant’s administratrix moved to cancel the judgment, under section 1268 of the Code, which was denied, and from which an appeal was taken to the court of appeals. This, in part, excuses the administratrix’s delay, but neither of the parties to this action seems to have regarded time as of any importance, and on that ground the court, at special term, refused to convict the defendant of laches; and we cannot say that, under the circumstances, and in consideration of the delays on both sides, the court improperly exercised its discretion.

The order appealed from must, therefore, be affirmed, with costs.