Barrow v. Sabbaton — 2 N.Y. Super. Ct. 348

Majority

p. 348

Thomas J. Barrow versus Paul A. Sabbaton.

Headnote

Double pleas must be signed by counsel,—and if a default be entered against a defendant, who has served double pleas, without the signature of counsel^ the court will not set it aside, except upon an affidavit of merits.

Mr. Mulock, in behalf of the defendant,

moved to set aside a default entered against him in this cause. He read an affidavit, showing that the default had been entered after the defendant’s pleas had been received by the plaintiff’s attorney. It appeared that the pleas served were double, a special plea being added to the general issue; but they were not signed by counsel. The attorney for the plaintiff had, therefore, treated them as a nullity, and entered a default for want of a plea.

Mr. D. B. Talmadge, for the plaintiff,

offered to waive the default, if the defendant would file an affidavit of merits; but this was declined by the defendant, Mr. Talmadge then contended that the pleas should have been signed by counsel to be regular, and that the court would not set aside the default, except upon proper terms. [He cited Dubois v. Philips, 5 J. R. 236, Satterlee v. Satterlee, 8 J. R. 327. Steward v. Hotchkiss, 2 Cowen’s R. 634. Brewster v. Hall, 6 Ib. 34.]

By the practice of the Supreme Court, double pleas must be signed by counsel, and those filed by the defendant, are irregular for the want of such signature. The court, in the exercise of its discretion, may, however, set such defaults aside, and will generally do so upon proper cause shown. If these pleas are interposed for delay merely, they are not entitled to favor, and that they are so, the court are compelled to infer, from the fact, that the defendant’s counsel refuses to accept the terms proffered by the plaintiff, and file an affidavit of merits. If he is not willing to give this test of the sincerity of his defence, the court will not interpose to correct an irregularity, for his benefit.

Motion denied, with costs.

[E. Curtis, Att'y for the plff. W. Mulock, Att'y for the deft.]