American Pin Co. v. Tepfer

111 N.Y.S. 1027 | N.Y. App. Div. | 1908

Scott, J.:

The. plaintiff appeals- from an order granting defendant’s' motion, to open a default and restore; .the cause, to the Calendar.; Such a 'motion is addressed to the discretion of the court, and ordinarily we -should not be disposed to review the exercise by the Special Term of its discretion in such a matter. - - The cii-cuffi.stances described by the papers are, however, unusual. The action; is for goods sold and delivered between September 1, 1907, and December 1, 1907. The answer contains a denial of the. allegations respecting sale, delivery and nonpayment. Then follows what the pleader evidently considered'.'a. defense, but which is manifestly insufficient in law. There- is also a counterclaim -for damages for the alleged imperfection of the go.ods sold by plaintiff to defendant within the dates mentioned in the complaint, the damages claimed amounting to more than three times the price for which the goods were sold. To this counterclaim the plaintiff,has replied w-ith'a,general denial; - The. defendant makes, ho effort to show that he has in fact any defense to the action or any ground for the claim embraced in-, his counterclaim.. " On "the other hand, the plaintiff exhibits numerous letters from defendant acknowledging the indebtedness,-giving excuses for non-payment, and begging for time. , .In none of these letters is.there a hint or suggestion of any such claim in behalf of defendant against plaintiff as is set up in the answer. These letters;'coupled with the complete Omission of'.the defendant to sustain his denials and allegations, compel the conclusion that the answer was interposed solely for the .purpose of delay. The excuse, for suffering the default is also unsatisfactory. The cause was moved on to the short calendar,-and the order so plating it,, together with a. notice to produce certain papers on the trial, was served on defendant’s. attorney..,on May 16,. 1908.. The cause was reached for trial on May 19, 1908, and an inquest taken. The attorney seems to have taken no steps to ascertain when the cause would appear on the calendar, or to have an appearance on the part of defendant when it did so appear. The whole history of' the case suggests merely an effort to stave off judgment as long as possible,-of which effort the suffering of a default was probably a part, the defendant hoping that his default would be excused upon terms involving the payment of only a moderate amount of costs. The order appealed from is reversed, with ten dollars costs and disbursements, and the motion to open the default denied, with ten dollars costs. Ingraham, McLaughlin, Laughlin and Houghton, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.