188 A.D. 930 | N.Y. App. Div. | 1919
The attempted appeal from the judgment entered by default herein is dismissed, without costs, on the ground that such a judgment is not appeal-able under the Code of Civil Procedure, section 1294. The order denying defendant’s motion to open his default and to vacate the judgment entered thereon is reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs. It appears from the motion papers and the court below has found that the trial counsel for the defendant was actually engaged at the time of the default herein at the trial of a case in the City Court of the City of New York. The defense set up in the answer is not frivolous, as was the defense attempted to be set up in London v. Schneider (137 N. Y. Supp. 694). This case is not analogous to Herrington v. Davitt (220 N. Y. 162). That related to a promise made after the composition in bankruptcy was complete and the bankrupt discharged. The promise involved in this action was made to induce the plaintiff to agree to the compromise and accept his share thereunder, and gave him a secret preference. If this defense is true, it will render the notes void. (Hanover Nat. Bank v. Blake, 142 N. Y. 404, 407; Bates v. Rosenberg, 121 N. Y. Supp. 335.) Jenks, P. J., Mills, Rich, Kelly and Jaycox, JJ., concurred.