Davenport v. Ferris

6 Johns. 131

• Court: New York Supreme Court
• Decided: May 15, 1810
• Status: Published

Opinion

Thompson, J.

We have relaxed the practice so far, in setting aside defaults, that I am disposed to extend it, .in every case, as far as we do in ejectment suits, and to set aside a default whenever the party swears to a defence on the merits, and no opportunity fo,r a trial has ■been lost.

Van Ness, J.

I am for granting the rule for the same -reason.

Kent, Ch. J.

I am for granting the rule, under the circumstances of the case, without giving any opinion as to the practice.

Per Curiam.

Take your rule, on payment of costs.

Rule granted.

(a)

See Tidd's Practice, 508. 2 Stra. 975. 4 Burr. 1996. The court of K. B. will set aside a judgment by default, though regular, when the plain-•till* has not lost a tria), upon an affidavit of merits, pleading issuahly, in■ilanUVi and payment of costs ; at\d by instanler is meant within 24 hours.