4 Wend. 217 | N.Y. Sup. Ct. | 1830
By the Court,
We would not refuse to set aside the judgment in the scire facias suit upon terms, could we also let the defendant in to defend in the original suit but that we cannot do. After a lapse of now full ten years, to set aside a judgment for irregularity, on the grounds relied on in this case, would be an extraordinary and unprecedented exercise of the powers of the court. Had the defendant not been arrested, or had he after his arrest been misled by any fraud or circumvention of the plaintiffs, and induced to believe that the suit was withdrawn or discontinued, wé might have permitted him to come in and defend ; but there is no imputation against the plaintiffs for having lulled the defendant into security, other than the omission tó proceed on the judgment, of which the defendant has no right to complain. The plaintiffs commenced their suit, and the defendants retained an attorney to defend, who gave notice in a cause wrongly entitled. Strictly the plaintiffs were not bound to regard such notice ; and although we would have relieved the defendant bn this ground, had he made application within a reasonable time, we cannot do so after a lapse of ten years. The defendant having non-prossed the plaintiffs in the cause in which he gave notice, furnishes no ground for relief; it was but the consummation of his own error, and even the acquiescence of the plaintiffs in that cause, of
