Cogswell v. Vanderbergh

1 Cai. Cas. 155, 1 Cole. & Cai. Cas. 214

• Court: New York Supreme Court
• Decided: August 15, 1803
• Status: Published

Opinion

Per Curiam.

This is an application to set aside the judgment, and all subsequent proceedings. The affidavits are very lengthy, and so far as they relate to merits, we put them totally out of view, for on that point they cannot be received, the plaintiff having been perfectly regular, according to the rules of this court. But the motion is made on the further ground of surprise. To this effect the defendant has sworn, and his testimony is corroborated by that of another witness to the same effect. On the other band may be opposed the positive denial of the plaintiff. If the weight of testimony be to decide, it will be found with the defendant. There has at least been a misunderstanding in this business. The defendant thought he paid his money that the suit might not go on, and therefore, did not make any defence. It is evident some great mistake has *been made; the plaintiff) however, is [*157] perfectly regular, and as each side may have thought himself right, the judgment and proceeedings must be set aside on payment of costs, pleading issuable, and taking notice of trial for the next circuit.

(a)

Judgment and proceedings set a side on terms.

Whether regular proceedings shall be set aside on merits has, in our practice, been vexata questio. It is certain that the rule of “putting merits totally out of view” on such an occasion was acknowledged more than once before the decision in the text, Edwards ads. M'Kinsiry, Col. Cas. 124, and even in the case of bail desiring to stand in the place of their principal. Lansing ads. Gorham, ibid. 116. Subsequent decisions seemed to confirm its strength, Beekman v. Franker, 3 Caines’ Rep. 95, by their very exceptions; as when in favor of an administratrix, Smith v. Nitchie, Caines’ Prac. 221, since reported 2 Johns. Cases, 287, when from the mistake of the attorney either as to the time of pleading, Russell v. Ball, Caines’ Prac. 221, or of the term in which the writ was returnable, Gardinier v. Crocker, 3 Caines’ Rep. 139, merits were allowed to relax, and, if strongly made out, to supersede the rule. Giles v. Caines, 3 Caines’ Rep. 107. What it now is, may perhaps be gathered, by observing that where there are merits, and a trial has not been lost, a regular default will be set aside on payment of costs. Jackson v. Stiles, 4 Johns. Rep. 486. Davenport v. Ferris, 6 Johns. Rep. 131. Even where a trial has been lost, and a writ of inquiry executed, if from a mistake on a doubtful point, Bennett v. Fuller, 4 Johns. Rep. 486, or in favor of administrators or executors, to prevent their being charged * honis propriis, Phillips v. Hawley, 6 Johns. Rep. 129. Fenton v. Garlick, ibid, 287, the above rule as to merits will not prevail. In what the merits consist ought, however, to be set forth in the affidavit on which the motion is made, Wilkes v. Hotchkiss, 5 Johns. Rep. 360, or stated as “being a good and substantial defence on the merits, as advised by counsel.” Cannon v. Titus, ibid. 355. See the observations on these words when used in opposing a reference, ante, p. 151, n. (b), and the regard to be had to merits as laid down in Caines’ Prac. 222. .