Opinion
November, 1909.
James A. Allen, for appellant.
James S. McDonough (Francis X. McDonough, of counsel), for respondent.
The defendant failed to appear at the call of the calendar; and, upon his default, an inquest was taken and judgment given for the plaintiff for the sum of $1,502.43. The defendant thereupon moved to open the default and vacate the judgment. The motion was granted upon payment of $20 and upon filing a bond for the said sum of $1,502.43. The defendant then moved for a reargument of the motion or a resettlement of the order. This motion was denied. The defendant appeals from the terms imposed by the first order and from the denial of his second motion.
The affidavits read upon these motions present questions of fact which the Special Term justice could properly in his discretion resolve in favor of either party, and the exercise of his discretion should not be disturbed upon this appeal. Since he has opened the default, he has apparently found, either that the defendant was free from neglect or that his neglect was excusable. Since he has granted the motion to open the default only upon terms, he has apparently found that the default was not occasioned by any misconduct upon the part of the plaintiff. He has certainly found that the defendant is entitled to his day in court, subject however to the right of the plaintiff to be protected from any injury arising by reason of the default of the defendant not occasioned by the plaintiff or his attorney.
Under these circumstances, the imposition of the $20 costs was clearly within the discretion of the justice; and we can consider only the requirement that a bond be given to secure the plaintiff upon a new judgment. It is undisputed that the defendant possesses no personal property; that he has an interest in a trust fund and is entitled to an annual income of $6,000; that he is required to pay a portion of this income to his wife; that he has creditors and that at present he is in Europe, either to escape service of a summons in a judgment creditor's action, or to benefit his health. The defendant's attorney therefore urges that he cannot comply with the requirement to give a bond; that the defendant has no property to give as security for a possible judgment, and that the plaintiff will be amply secured if the default be opened and the inquest be set aside and the judgment stand as security for any future judgment. I fail to see why the plaintiff is not fully protected by such terms. The defendant has no property which he can remove; the judgment now obtained cannot be enforced except by a judgment creditor's action to reach the income of a trust fund. It is quite true that the defendant is asking a favor of the court which the court may grant upon any terms that it sees fit to impose, but these terms are intended to protect the plaintiff and not to give him an advantage which he would not have enjoyed except for the default.
The order opening the default should, therefore, be modified so as to provide that, if the defendant pays the sum of $20 to the plaintiff or his attorney, the said judgment be set aside, except as hereafter provided, and the defendant's default opened and the cause restored to the day calendar for trial, and that the judgment heretofore obtained herein stand as security for any judgment which the plaintiff may recover herein; and the said order as so modified should be affirmed, without costs to either party.
GILDERSLEEVE and SEABURY, JJ., concur.
Order modified and, as modified, affirmed, without costs.