Brewster v. Boyle

New York Supreme Court

Brewster v. Boyle

19 N.Y.S. 146, 46 N.Y. St. Rep. 610, 64 Hun 636

DecidedMay 13, 1892

StatusPublished

This text of 19 N.Y.S. 146 (Brewster v. Boyle) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Brewster v. Boyle, 19 N.Y.S. 146, 46 N.Y. St. Rep. 610, 64 Hun 636 (N.Y. Super. Ct. 1892).

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Opinion

Per Curiam.

When the motion to open the default in this case was originally denied, leave was given to the defendants to renew upon further papers. They were thus plainly advised that an affidavit of merits was insufficient to entitle them to be relieved. They evidently understood that they would be required to present a good prima facie defense, and also to show good faith in making the application. But they have done neither. The affidavit of the defendant Weidenfeld, conceding its absolute verity, fails to outline any defense. The defendants, for a valuable consideration, viz., the extension of the time within which certain mortgages were to be made payable, agreed to purchase two second mortgages for $3,000 and $4,000, respectively, within 30 days from the 15th day of December, 1891. These facts are uncontradicted. The agreement was in writing, and specified the extension of the prior mortgages from one to three years as the consideration for the contract to purchase. The original contract providing that these first mortgages should run for one year was also in writing, and a copy is to be found in the record. There is not, therefore, a suggestion of a defense nor of good faith in the making of this application. It was of no consequence whether a demand for the money which the defendants agreed to pay was made within the 30 days, and the question of tender would, under the circumstances, only affect the matter of interest. It is plain that the defendants have no substantial merits, and their application was properly denied. The order should be affirmed, with $10 costs and disbursements.

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Per Curiam.

When the motion to open the default in this case was originally denied, leave was given to the defendants to renew upon further papers. They were thus plainly advised that an affidavit of merits was insufficient to entitle them to be relieved. They evidently understood that they would be required to present a good prima facie defense, and also to show good faith in making the application. But they have done neither. The affidavit of the defendant Weidenfeld, conceding its absolute verity, fails to outline any defense. The defendants, for a valuable consideration, viz., the extension of the time within which certain mortgages were to be made payable, agreed to purchase two second mortgages for $3,000 and $4,000, respectively, within 30 days from the 15th day of December, 1891. These facts are uncontradicted. The agreement was in writing, and specified the extension of the prior mortgages from one to three years as the consideration for the contract to purchase. The original contract providing that these first mortgages should run for one year was also in writing, and a copy is to be found in the record. There is not, therefore, a suggestion of a defense nor of good faith in the making of this application. It was of no consequence whether a demand for the money which the defendants agreed to pay was made within the 30 days, and the question of tender would, under the circumstances, only affect the matter of interest. It is plain that the defendants have no substantial merits, and their application was properly denied. The order should be affirmed, with $10 costs and disbursements.

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Bluebook (online)

19 N.Y.S. 146, 46 N.Y. St. Rep. 610, 64 Hun 636, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brewster-v-boyle-nysupct-1892.