Clark v. Lyon

2 Hilt. 91 | New York Court of Common Pleas | 1858

By the Court, Hilton, J.

A defendant, failing to serve his answer within the time allowed for that purpose, upon excusing his neglect and showing a good defence, is usually permitted to interpose it upon such terms as to the court may seem proper, according to the circumstances of the case.

As no special reason exists for depriving the defendant of the benefit of this general practice of the court, the order appealed from should be modified so as- to allow him to answer on payment of the costs of the motion to open his default. The judgment, execution, and levy now existing, to stand as security for the payment of any judgment the plaintiff may hereafter recover in this action.

Ordered accordingly.