Goldberg v. Wood, 50 Misc. 618

Goldberg v. Wood

50 Misc. 618 | N.Y. App. Term. | 1906

Per Curiarn.

In our view, the motion to set aside the inquest and the judgment entered thereon should have been granted. The stay of proceedings arising from the failure to pay costs provided for by section 779, Code of Civil Procedure, . is intended to prevent the party in default from taking any affirmative proceeding in the action, but was not intended and may not be used to prevent him from defending himself from attack. Randall v. Abrisqueta, 20 Abb. N. C. *619292. The defendant, therefore, notwithstanding he was in default was entitled to defend the action upon the issues raised by his general denial. It was not necessary for him, in order to preserve his rights, to have appeared on the day that the inquest was taken. The justice, in a carefully considered memorandum decision, had determined that defendant would not be heard unless he paid the costs, and that, in default of such payment by the following Monday, an inquest would be taken. Under such circumstances, it would have been idle to have appeared and attempted to reargue the question, and might have subjected counsel to rebuke. The only way in which the defendant could review the decision of the justice was to permit the inquest to be taken and then move to set it aside. The inquest cannot be justified by the absence of an affidavit of merits, because the answer was verified.

The order appealed from must be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Present: Scott, O’Gobman and Newbuegeb, JJ.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.