James v. McCreery — 27 N.Y. St. Rep. 88

Majority

p. 88

Edward F. James, App’lt, v. James McCreery, Resp’t.

(Supreme Court, General Term, First Department,

Filed November 7, 1889.)

Headnote

Default—When will not be opened.

A default will not "be opened where the party applying therefor has heen guilty of loches or where the denial of the motion will not, under all the circumstances, do an irreparable injury to the party in default.

Appeal from an order denying motion to open default taken herein at circuit.

E. F. James, app’lt in person; W. F. Dunning, for resp’t.

The appeal in this case seems to have been based upon the idea that a default is to be opened in every case as a matter of course.

The motion is, we think, a mistaken one, and snch motions should not be granted where the party applying has been guilty of loches, or where the denial of the motion will not do, under all the circumstances, an irreparable injury to the party in default.

There is no good reason why all the damages arising from the negligence of a party or his attorney should be visited upon the opposing party to the action, as would be the case if defaults were to be opened as a matter of course.

The plaintiff in this case has been guilty of great laches in the making of this motion, and should be remitted to a new action for the enforcement of his rights if he has any.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Brady and Daniels, JJ., concur.