Ridley v. Manhattan Railway Co. — 55 N.Y. St. Rep. 473

Majority

p. 473

Edward A. Ridley et al, Resp’ts, v. The Manhattan Railway Co. et al, Appl’ts.

(Supreme Court, General Term, First Department,

Filed October 13, 1893.)

Headnote

Default—Conditions—Elevated railroad cases.

An action to restrain the operation of an elevated railroad was begun in 1885, but the complaint was not served although plaintiffs were given until 1887 to do so, when they were in default. In 1898 a motion to open the default was made on the ground that on account of the sickness and death of plaintiffs’ former attorney the absence of a complaint was not discovered in some years; but it appeared that their present attorney was the brother and partner of the former one. Held, that the default should only be opened on plaintiffs’ stipulating to waive all damages for any period more than six years prior to the date of motion, and payment of costs of the motion and action.

Appeal from order opening a default.

Davies, Short & Townsend (Herbert Barry,Julien T. Davies and Wm. B. Coles, of counsel), for app’lts; William R. Wilder, for resp’ts.

This action was begun by service .of a summons on March 26, 1885, and thereafter the defendants duly appeared, and demanded a copy of the complaint. The plaintiffs were given by the defendants two years and a half within which to prepare and serve a complaint, and by the last extension, which was of one day only, the plaintiffs were apprised of the fact that defendants were unwilling to further extend the time to serve the complaint. At the end of such time, namely, on November 3, 1887, the plaintiffs were in default, in failing to serve their complaint, and no attempt was made to have this default opened until March 13, 1893, a period of more than five years. Upon the motion the excuse offered for what would appear to be gross laches was that the former attorney for plaintiffs was sick, and subsequently died, and that the fact that no complaint was served was not discovered •for some years. It appears, however, that the plaintiffs’present attorney was the brother and associate in business of the former attorney for plaintiffs, and the excuse offered for the laches is thus deprived of much of its force and weight. The learned judge at special term granted the motion to open the default upon condition that plaintiffs pay ten dollars costs of motion. Such terms, we think, were not sufficient. The effect of opening the default in an action of this kind is to give the plaintiffs a cause of action for damages extending over a period of more than fourteen years, the greater part of which would be barred by the.statute of limitations if a new action should now be brought, and thus, instead of losing, the plaintiffs would be rewarded for their neglect. This, we think, should not be permitted. Upon opening the default the judge should have required the plaintiffs to stipulate to waive all the claims for damages during any period more than six years

p. 474

prior to March 20, 1893, which was the date of the order to show -cause why the plaintiffs’ default should not be opened; and in •addition the plaintiffs should have been required to pay to defend ants, not only the costs, of the motion, but the costs of the action. We think, therefore, that the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion to open the default denied, with ten dollars costs.

O’Brien, Follett and Parker, JJ., concur.