Dana v. Thaw

109 N.Y.S. 826

Opinions

PER CURIAM.

The action is for professional services as expert alienist. On October 11, 1907, judgment was entered in favor of plaintiff upon inquest. Motion was made to open defendants’ default and vacate the judgment. The motion was granted, and appeal taken to this court, and heard at December term, 1907. We reversed the order, and directed that motion be denied, with leave to renew on proper papers. See opinion by Ford, J., page 22 of record. A second motion to vacate the judgment was heard by Mr. Justice Conlan, and denied, with leave to renew.

The fatal obstacle to defendants’ efforts to vacate the judgment is the absence from all the papers, now or heretofore before the court, of any real or meritorious defense. The court might very well have excused the default, but the failure to disclose any defense prohibited the court from extending any favor to the defendants. Clews v. Peper, 112 App. Div. 430, 98 N. Y. Supp. 404. The order should be affirmed, with $10 costs, except as to the provision granting leave to make a third motion, which should be stricken out.

Order modified, by striking out the provision for renewal, and, as modified, affirmed with $10 costs and disbursements.