Forster v. Capewell

1 Hilt. 47

• Court: New York Court of Common Pleas
• Decided: February 15, 1856
• Status: Published

Opinion

INGRAHAM, Eirst Judge. —

The judgment in the court below was by default, duly taken before the- j ustice who granted the judgment, as appears by the return.

To enable the court to set aside a judgment by. default such default must be excused and the defendant must show that injustice hns been done him by the judgment.

I doubt -very much the sufficiency of the excuse, when the defendant himself states that he was in the court room and did not hear the cause called. The justice returns that it was first called by the clerk and entered - in the register, and was after-wards called before the justice. A defendant should at least show sufficient attention to his interests to listen when the justice calls his case on for trial.

But even admitting that the excuse is sufficient, the defendants do not establish that injustice has been done them by the judgment. One of the defendants swears that the note was given for -money loaned, and that usury was charged for it. This is denied by the plaintiff. In such cases we require the appel lant, in addition to his own affidavit, to furnish proof, by some other person, of the truth of his defence. We cannot say, where the defendant states a fact and the plaintiff denies it, which of the statements is correct; and the only way to establish it is, by the affidavit of the witness, by whom the defendants expect to prove their defence.

The judgment must be affirmed.