Tooker v. Booth

This action was commenced on the 15th day of December, 1886, by the service of the summons on the defendant. On the 16th day of December 1886, defendant appeared by attorney. On the 12th day of October 1887, the complaint was served on the defendant’s attorney, and on the 12th day of December 1887, judgment was entered herein by default and that execution was issued upon said judgment and returned February 11th, 1888. In December 1893, proceedings were instituted by plaintiff for the examination of a third party in supplementary proceedings, it appearing that there is in the hands of such third party, property sufficient to satisfy the judgment herein. After the institution of these proceedings defendant moved to open the default, vacate the judgment herein and for leave to defend which motion was granted and from the order entered thereon this appeal is taken. We think the motion should have been denied. More than six years had elapsed since the entry of the judgment. The explanation sought to given by the defendant for the delay is not satisfactory. It is apparent that the defendant’s application is not prompted by a desire to defend but rather from the fact that she is about to collect a legacy left her and thus the plaintiff ’s claim is now collectable. The defendant’s application was not made with that diligence that the law requires, Wygant v. Brown, 27 St., Rep. 4 ; Drummond v. Matthews, 42 St., Rep. 117 , and should have been denied. For these reasons the order appealed from should be reversed and the motion to open default denied with costs.

Van Wyck, and McCarthy, J. J., concur.