Meyer v. Mallon — 66 N.Y. St. Rep. 206

Majority

p. 206

Caroline Meyer, Resp’t, v. Mary Mallon et al., App’lts.

(Supreme Court, General Term, Second Department,

Filed March 5, 1895.)

Headnote

Judgment—Y acation.

A motion to open a foreclosure judgment, made after the lapse of seventeen years, will be denied on the ground of loches, where the judgment roll contains an affidavit of personal service of the summons and complaint, which is opposed only by an allegation in the moving affidavit that, to the best of defendant’s recollection, the summons and complaint were not served on her.

Appeal from-on order, denying a motion to set aside a judgment of foreclosure and sale, and to permit the defendant to answer. •

Norman A. Lawlor, for app’lts ; Martin J. Keogh, for resp’t.

This is an appeal from an order of the special term denying the application of the defendant Mallon to set aside a judgment of foreclosure and sale, and permit the defendant to-answer. We think the application was properly denied, on the ground of the gross loches of the appellant. The judgment sought to be vacated was rendered on the 9th day of June, 1877. This application was not made until October, 1894, after a lapse of over seventeen years, The judgment-roll" contains an affidavit, of personal service of the summons and complaint upon the appellant, made by the plaintiff’s attorney, who has since deceased. This positive oath should outweigh the statement in appellant’s-affidavit, which is simply to the effect that, to the very best of her recollection, there were not any summons and complaint served upon her. The judgment was therefore regular, and now, after it has stood for this long period, and the sale made under it unchallenged, should not be opened.

The order appealed from should be affirmed, with $10 costs and disbursements.