Jacobs v. Marshall — 13 N.Y. Super. Ct. 689

Majority

p. 689

Jacobs v. Marshall. The Same v. Smith.

Headnote

Any person sent by a defendant’s attorney to serve an answer, which the plaintiff’s attorney refuses to receive for the reason stated to such messenger at the time, that the period to answer has expired, is a proper person to whom to state the reason of such refusal. Giving to him that information, and sending the answer back by him, is doing all that a plaintiff’s attorney can be properly required to do in such a case.

If after that, it is' sent to the office of the plaintiff’s attorney a second time and left there, he is not bound to return it a second time, and a judgment subsequently entered, as for want of answer, will not be set aside as irregular, by reason of the answer not having been returned a second time.

An order opening a regular judgment and default, is not appealable in respect to the terms imposed as a condition to the granting of such relief.

(Before Duer, Ch. J., Bosworth, Hoffman, Slosson and Woodruff, J.J.)

December 26, 1857.

Each action comes before the court on an appeal by the defendant from an order opening a judgment by default, and allowing the defendant to answer, the defendant being dissatisfied with the terms imposed as a condition to his being permitted to answer, he being precluded by such terms from setting up the defence of usury. When the answer was served, or attempted to be, it was

p. 690

handed back to the boy or messenger, and he was told it would not be received because the time to answer had expired. The messenger, on reaching the office of defendant’s' attorney, was instructed to carry it back and re-serve it on plaintiff’s attorney and leave it, and he did so, and plaintiff’s attorney did not return it the second time. The affidavits tended to show, that the boy, when he returned with the answer after the first attempt to serve it, did not report the reason given by plaintiff’s attorney for not accepting it, and it was urged that he was not an authorized agent to receive such communications, and that plaintiff’s attorney, by not returning it when served the second time, had waived the default, and therefore the judgment subsequently entered, was irregular, and should have been set aside, with costs.

We fully concur with the court at Special Term, in holding the defaults herein entirely regular. The affidavits on the part of the plaintiff not only show, that no extension of the time to plead was given, but that nothing was done or said which should have misled the defendants’ attorneys.

And in once returning the answers, when served after the time to answer had expired, informing the messenger by whom the answers were sent, that they would not receive them because the time to answer had expired, the plaintiff’s attorneys did all which the rules of practice or just notions of candor and fair' dealing required. The agent employed by the defendants’ attorney to make the service, was as competent to receive from the plaintiff’s attorneys the reason why the answers were rejected, as he was to carry back the answers themselves.

Kor could the defendants’ attorneys by again sending the answers to the office of the plaintiff’s attorneys and forcing them upon them, make it their duty to send them back a second time. Having refused to receive them, and assigned a sufficient reason therefor, they had done all that good faith or professional fairness required, and the defendants could no more make it their duty to send back the answers a second time, than they could a third or fourth, or any greater number of times, by repeatedly sending the answers back so often as the plaintiff’s attorneys returned them.

In regard to the terms imposed by the Judge as a condition

p. 691

of opening the defaults, it must suffice to say, that whatever we may think of the propriety of a discrimination between the defence of usury and any other, the conditions were in the discretion of the Judge, and we are not at liberty to review the exercise of that discretion. (1 Comstk. 43, and cases cited; 2 Code Rep. 41 ; 3 Code R. 141; 4 Sandf. Sup. Ct. R. 709.)