Majority
p. 802Harris Rosenthal, Resp’t, v. E. Miner Payne et al., App’lts. (New York Common Pleas, General Term, Filed December 3, 1888.)
Headnote
Judgment—When default will not be opened—Attendance of counsel.A default will not be opened on the affidavits of counsel that they were detained in another court where they were in attendance for two weeks prior to the default, and were notified on Saturday that the case would be pressed on Monday, when their default, was taken, where their affidavits do not show in what court or action they were detained, no detense to the action being shown.
Appeal from two orders denying defendant’s application to open a default, and from the judgment entered on such default.
This action was originally brought on October 7, 1887, against Hugh J. Grant, as sheriff of the city and county of New York, to recover the sum of $800, being the alleged value of certain teas and coffees which the plaintiff claims was his property and was unlawfully taken by said sheriff under process against one Thomas McGrath. The answer is the same which has been served by the sheriff in cases of this kind for upwards of twenty-five years. On April 3d, 1888, an order was made substituting the above-named defendants who were the indemnitors under three separate levies in the place and stead of the sheriff. On Monday, June 18th, 1888, the above entitled action was called for trial after having been on the calendar daily since the commencement of said term, and counsel not appearing for the defendants, judgment was taken by default for the full amount claimed.
A motion to open the said default was made and denied unconditionally by Mr. Justice Van Hoesen on July 6th, 1888, who wrote the following opinion:
“Motion to set aside default and to restore cause to calendar denied.
“I see no earthly excuse for the default, and I cannot discover from the papers any probability that the defendants have a defense.”
A motion for a reargument was made on August 2d, 1888, and also denied, from both of which said orders this appeal has been taken to the general term of this court.
Wales F. Severance, for resp’t; J. George Flamaner, for app’lts.
The defendants being in default were bound to present a reasonable excuse for suffering it to be taken, and also to show that they had a good defense upon the merits in the action.
p. 803
We have carefully looked over the papers submitted to the judge at special term, and in our judgment there is an utter failure to establish any defense whatever to the action. Nor do we think the judge at special term wrongfully exercised his discretion when he held that the reasons for suffering the default were not satisfactory. The affidavits of both counsel failed to show in what court they were detained, nor did they show the action in which they were engaged at the time. It also appears that they had been in constant attendance for two weeks prior to that time, answering ready; and that on the Saturday previous to the taking of the default, they were notified that the plaintiff would press the case on the following Monday, and it was their duty to have been present at that time.
The judgment and orders must, therefore, be affirmed; but under the circumstances of the case with costs of the appeal from the judgment only.