Drummond v. Matthews — 42 N.Y. St. Rep. 117

Majority

p. 117

Thomas Drummond, Resp’t, v. James Brander Matthews, App’lt.

(City Court of New York,

General Term,

Filed December 17, 1891.)

Headnote

Default—Laches.

Where judgment was taken by default in 1885, and no motion made to open the default for about six year's, and until the defendant inherited property and was about to be examined in supplementary proceedings, Held, that the motion should be denied on the ground of loches.

Appeal from order denying motion to open a default and vacate and set aside the judgment entered thereon.

Lincoln W. McLeod, for resp’t; Abbott Brothers, for app’lt.

This action is based upon an award. It was commenced November 3, 1883, defendant appearing by attorney who was served with complaint; no answer was served, and judgment was entered September 30, 1885, and execution issued April 3, 1886, for $1,365.45. No further action was taken by defendant until April 16, 1891, when lie applied through his attorney for an order to open his default and to set aside and vacate the judgment and to permit him to appear and answer. This application was denied and from the order entered thereon this appeal is taken.

The order appealed from is a discretionary one and should be affirmed unless it appears that the special term justice acted arbitrarily.

p. 118

I have carefully read the papers submitted on appeal, together with áppellant’s brief. They show the utmost indifference and carelessness on defendant’s part concerning this judgment. He was without means until his father’s death (a short time ago) when he received a large portion of his father’s estate and is now able to pay this judgment.

The execution issued by plaintiff in 1886 was returned unsatisfied, and no further proceedings were taken by plaintiff for the reason that defendant was penniless until April, 1891, when learning that defendant was able to pay his claim he procured an order for his examination in supplementary proceedings. Then for the first time defendant questioned this judgment, displayed some interest concerning it and intimated that he had a defense thereto. It appears to me that the lively interest now' exhibited by him is due to the fact that the judgment against him is now collectible and not because he has a meritorious defense. But whether this be so or not, I agree with the special term justice in the order made by him. 'The defendant should not be allowed now to set aside the judgment entered or to question.the same, or to answer herein. His loches and apparent indifference to the proceedings taken against him are so gross that to grant his applica-' tian would simply be an inducement and encouragement to litigants to be careless in legal proceedings taken against them. Such I think is not the purpose or policy of the law. They should at least be reasonably diligent in the protection of their rights.

The order appealed from is just and right and is affirmed, with costs.

Yan Wyok and McCarthy, JJ., concur.