Wygant v. Brown — 27 N.Y. St. Rep. 4

Majority

p. 4

Grace Wygant, Executrix, Resp’t, v. Joseph M. Brown, App’lt.

(Supreme Court, General Term, First Department,

Filed November 7, 1889.)

Headnote

Default—Motion to set aside—Loches.

An application to set aside a default must be made with reasonable diligence after such default becomes known to the party affected by it. A delay of eighteen months is fatal to the success of such an application.

Appeal from an order denying a motion to open a default and permit the defendant to answer the complaint

Robert Christie, for app’lt; E. A. S. Mann, for resp’t.

The judgment was entered in the action by default in December, 1886, and it was not until July, 1888, that notice was given of the application to set aside the default and permit an answer to be served. No satisfactory reason excusing this delay has been presented by the papers. For the purpose of securing the success of such an application the law is explicit, that it must be made with reasonable diligence, after the default shall have become known to the party affected by it This application was not made as this rule requires that it should have been made to entitle it to succeed. The defendant delayed taking the necessary proceedings for this purpose for too long a period of time. She thereby lost her right to the interference of the court in her behalf, and the order from which the appeal has been taken should be affirmed, with ten dollars costs and the disbursements.

Order affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J., and Barrett, J., concur.