Hart v. Washburn — 42 N.Y. St. Rep. 440

Majority

p. 440

James S. Hart, App’lt, v. William L. Washburn, Ex’r, et al., Resp’ts.

(Supreme Court, General Term, First Department,

Filed December 31, 1891.)

Headnote

1. Default—Motion to open—Bab.

The fact that a motion to open a default has Been denied is no bar to a subsequent motion for the same relief, where the judge who denied the former motion grants the order to show cause. This is equivalent to granting leave to renew, if such leave was necessary.

2. Same—Tebms.

Where the action was of a character which would abate by the death»of the defendant and there has been a long delay in renewing the motion, the judgment should be permitted to remain as security to protect the plaintiff’s rights, and he should not be required to accept in lieu thereof an undertaking to pay any judgment which ho might eventually recoven

p. 441

Appeal from order opening a default.

W. & Andrews, for app’lt; Horace 6r. Wood, for resp’ts.

This action was commenced in April, 1885, against one Richardson as trustee of a corporation organized under the laws of the state of New York, because of failure to file the annual report required by law.

The defendant in the action obtained various extensions of time to answer, and before the expiration of the last extension, the plaintiff’s attorney died. In 1886 the present attorney for the plaintiff was substituted in place of the deceased attorney, and judgment was entered by default against the defendant for the amount claimed, interest and costs. A motion was subsequently made to open the default on behalf of the defendant and this motion was denied, and a copy of the order denying the motion and notice of the entry thereof was served upon the defendant’s attorney. No appeal was taken from that order, and no request for leave to renew the motion was ever made.

In February, 1887, another attorney was substituted for the defendant herein. The defendant moved again to open the default, upon an order to show cause granted by the judge who had previously denied the motion. This second motion was granted, and the default was opened upon condition that the judgment stand as security unless the defendant file an undertaking conditioned for the payment of any sum the plaintiff might recover in this action, and from the order thereupon entered this appeal is taken.

We think upon an examination of the record that the court in its sound discretion was justified in allowing the defendant to litigate the claim presented by the plaintiff. The fact that the motion had been previously denied was no bar to the present motion, the learned judge who denied that motion having granted the order to show cause, which was equivalent to granting leave to renew if such leave was necessary.

But we think that the rights which the plaintiff had acquired by reason of the judgment which had been entered should, because of the long delay which had taken place between the denial of •the motion to open the default and the renewal of the same, have been completely protected. The action was of a character which abated by the death of the defendant Although the order opening the default provided that the judgment should remain as security, it was accompanied with the alternative that the defendant might file an undertaking with two sufficient sureties for the payment of any sum which the plaintiff might recover in this action against the defendant

This compelled the plaintiff to take the risk of the life of the defendant after he had secured his claim by judgment. This we think was error. He was entitled to be secured in the rights which he had acquired by the entry of such judgment; and although the defendant might be permitted to litigate the question as to his liability, the plaintiff should not be compelled, in addi- '

p. 442

tian to the obligation of proving his case against the defendant,, also to insure-his life in order that he might recover.

We think, therefore, that the order should be reversed, with leave to the personal representatives of the defendant to move to-be allowed to defend, and the court will then make such an order as will protect the rights of the .plaintiff, with ten dollars costs of this appeal and disbursements to abide the final event of the action.

■ Patterson, J., concurs.