Gross v. Granite State Provident Ass'n — 59 N.Y. St. Rep. 267

Majority

p. 267

Max Gross, Resp’t, v. Granite State Provident Association, App’lt.

(New York City Court, General Term,

Filed May 18, 1894.)

Headnote

Judgment—Default—Opening.

Where the plaintiff has been guilty of laches in making his motion to open a judgment taken by default for costs only, he should be remitted to a new action for the enforcement of his rights if lie has any.

Appeal by defendant from an order opening plaintiff’s default

Philip Carpenter, jfor app’lt; Abram A. Joseph, for resp’t.

The record shows that plaintiff entered into an agreement in August, 1890, with his attorney, to give him twenty five per cent, of his recovery in this action, which w'as commenced in that month and a warrant of attachment was issued herein and defendant’s property attached thereunder ; that plaintiff never served a notice of trial or filed a note of issue herein; that in December, 1892, defendant made a motion to dismiss for want of - prosecution and served notice of same upon plaintiff’s attorney who sought and secured an adjournment of same for two days and then defaulted, upon which defendant’s motion was granted with costs of action to date, whereupon, on January 11, 1893, defendant entered a judgment against plaintiff wholly for costs after notice of entry of same and taxation of costs was duly given to plaintiff’s attorney and an execution issued and returned unsatisfied, whereupon, on February 3, 1894, an order in supplementary proceedings was issued and plaintiff was examined thereunder on the 8th of that month. „On March 1, 1894,, over three and a half years after commencement of the action and more than one year after the same had been dismissed for want of prosecution, the plaintiff moved to open his default in the motion to dismiss and his motion was granted, and the default opened by the order from which this appeal is taken. Not a single fact, as above set forth, was denied by plaintiff’s attorney nor "by plaintiff’s own affidavit except that he says he did not personally hear about the case until the judgment was entered, which was more than one year before his motion. The defendant’s judgment was for costs

p. 268

only and the dismissal of the plaintiff’s action was not on the merits, hence, he can bring a new action if he has any cause and if he does not need to amend his complaint for it is indeed doubtful whether it sets forth a cause of action. His motion should have been denied, leaving him to his new action. Judge Yan Brunt says in James v. McCreery, 27 St. Rep. 88 , “ 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 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.” And see Wygant v. Brown, 27 St. Rep. 4 . The order is re versed, and plaintiff’s motion denied.

McCarthy, J., concurs.