Bodow v. Levin

Appellate Terms of the Supreme Court of New York

Bodow v. Levin

146 N.Y.S. 144

CourtAppellate Terms of the Supreme Court of New York

DecidedMarch 5, 1914

StatusPublished

This text of 146 N.Y.S. 144 (Bodow v. Levin) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bodow v. Levin, 146 N.Y.S. 144 (N.Y. Ct. App. 1914).

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Opinion

SEABURY, J.

The defendant appeals from an order denying his motion to open his default in consequence of which an inquest was taken against him. The plaintiff sued to recover $87.53 claimed to be due him as commissions for sales made on behalf of the defendant. The defendant made a tender of $23.94. This action has been pending in the Municipal Court since September, 1913. Judgment was entered upon the inquest against the defendant on December 1, 1913.

No substantial excuse is offered by the defendant’s attorney for his default, except that his client did not appear upon the day set for trial, and the client gives no reason why he did not appear on that day;. Upon two previous occasions judgments were entered against the defendant by default, and these defaults were opened. Under these circumstances, the defendant’s present plea that he should be given “his day in court” is not persuasive. He has already been accorded three opportunities to try his case, and has neglected to avail himself of any of them. Defaults are not to be opened as a matter of course. Where a default has been entered, the burden is upon the party who defaulted to show a substantial and meritorious excuse for his default, or he cannot be relieved of the consequences of his neglect. No such excuse is shown in this- case, and the court below properly denied the defendant’s motion.

The order appealed from is affirmed, with costs. All concur.

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SEABURY, J.

The defendant appeals from an order denying his motion to open his default in consequence of which an inquest was taken against him. The plaintiff sued to recover $87.53 claimed to be due him as commissions for sales made on behalf of the defendant. The defendant made a tender of $23.94. This action has been pending in the Municipal Court since September, 1913. Judgment was entered upon the inquest against the defendant on December 1, 1913.

No substantial excuse is offered by the defendant’s attorney for his default, except that his client did not appear upon the day set for trial, and the client gives no reason why he did not appear on that day;. Upon two previous occasions judgments were entered against the defendant by default, and these defaults were opened. Under these circumstances, the defendant’s present plea that he should be given “his day in court” is not persuasive. He has already been accorded three opportunities to try his case, and has neglected to avail himself of any of them. Defaults are not to be opened as a matter of course. Where a default has been entered, the burden is upon the party who defaulted to show a substantial and meritorious excuse for his default, or he cannot be relieved of the consequences of his neglect. No such excuse is shown in this- case, and the court below properly denied the defendant’s motion.

The order appealed from is affirmed, with costs. All concur.

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Bluebook (online)

146 N.Y.S. 144, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bodow-v-levin-nyappterm-1914.