Majority
p. 611William H. Van Arsdale, Resp’t, v. George King, App’lt. (Supreme Court, General Term, Second Department, Filed May 13, 1895.)
Headnote
Judgment — Leave to sue — Vacation—Loches.A motion to vacate an order granting leave to sue on a judgment, made nearly four years after entry of such order, will be denied on the ground of loches.
Appeal for an order denying a motion to vacate an order, granting leave to sue on a judgment.
In April, 1894, defendant moved to vacate an order made on December 6, 1890, granting leave to sue on a judgment rendered in favor of plaintiff against defendant in November, 1880. The moving papers presented two objections to the order: First, that defendant, when the preliminary order was made, on November 26,1890, allowing service by mail of the notice of the application for leave to sue, was within the jurisdiction of the court, and could have been served personally with such notice; and, second, that the order permitted the service of notice to be made on or before the 28th of November, and the application to be made on the 6th of December, — that is, permitted service by mail in less than sixteen days.
Norman A. Lawlor, for app’lt; Isaac N. Mills, for resp’t.
This is a'n appeal from an order of the special term denying a motion to vacate an order made at the Westchester county special term on the 6th day of December, 1890, granting leave to bring this action, and to set aside and vacate all the proceedings subsequent thereto, including the judgment entered in this action.
The great delay in making this motion would be a sufficient justification of its denial. But, aside from the delay, the motion was entirely destitute of merit. At most, there was only irregularity in the original motion for leave to sue. The merits are all with the plaintiff, and no injustice has been wrought. The order should be affirmed, with $10 costs and disbursements.
All concur.