Mather v. Carrol — 14 N.Y. St. Rep. 469

Majority

p. 469

Daniel Mather et al., Resp’ts, v. Thomas Carrol, App’lt.

(Supreme Court, General Term, Third Department,

Filed February 1888.)

Headnote

Practice—Default in pleading—What necessary to entitle party to ORDER OPENING.

Upon a motion, made by a defendant to open a judgment taken for default in pleading, the moving party made the ordinary affidavits of merits, and stated that ho had failed to answer the complaint, relying upon the representation of a co-defendant that the indebtedness for which the action was brought had been paid. He did not on the motion, state that it had been paid, nor make nor tender any answer. Held,, that in order to entitle himself to an order opening the default, it was necessary for him to show to the court clearly that he had a defense.

William H. McCall, for app’lt; E. D. Wing, for resp’t.

This is an appeal from an order denying a motion to open a judgment taken by default for want of an answer. The motion is by one of two defendants. The action appears to be upon notes made by defendants.

The summons and complaint were served November 11, 1887, and judgment entered December 3, 1887. Defendant Carroll says that, on receipt of summons and complaint, he placed them in the hands of counsel, with what direction is not stated; that, within a few days, he was taken sick and so remained; that his co-defendant told him the indebtedness was paid, and that he relied upon that fact; that on receiving notice of the judgment he retained counsel.

The defendant makes the ordinary affidavit of merits. The learned justice, at special term, probably thought that the defendant’s excuse was insufficient, and that, under the circumstances, something more should be shown in the way of merits than the ordinary affidavit.

We think this discretion was wisely exercised.

The defendant says he relied on McG-arr’s statement that the notes were paid. He does not now state that they have been paid. And he evidently did not suppose he had any other defense than the alleged payment by McG-arr. He does not make or tender any answer. He ought to show clearly to the court, under circumstances such as this case presents, that he has a defense.

Order affirmed, with ten dollars costs and printing disbursements.

Landón and Ingalls, JJ., concur.