Gross v. Granite State Provident Ass'n

City of New York Municipal Court

Gross v. Granite State Provident Ass'n

8 Misc. 530, 28 N.Y.S. 769, 59 N.Y. St. Rep. 267

DecidedMay 15, 1894

StatusPublished

This text of 8 Misc. 530 (Gross v. Granite State Provident Ass'n) is published on Counsel Stack Legal Research, covering City of New York Municipal Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gross v. Granite State Provident Ass'n, 8 Misc. 530, 28 N.Y.S. 769, 59 N.Y. St. Rep. 267 (N.Y. Super. Ct. 1894).

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Opinion

Van Wyck, J.

The record shows that plaintiff entered into an agreement in August, 1890, with his attorney to give him twenty-five per cent of his recovery in this action, which was commenced in that month, and a warrant of attachment was issued herein and defendant’s property attached thereunder ; that plaintiff never served a notice of trial or filed a note of issue herein; that in December, 1892, defendant made a motion to dismiss for want of prosecution and served notice of same upon plaintiff’s attorney, who sought and secured an adjournment of same for two days and then defaulted, upon which defendant’s motion was granted, with costs of action to date, whereupon, on January 11, 1893, [531]*531defendant entered a judgment against plaintiff wholly for costs, after notice of entry of same and taxation of costs was duly given to plaintiff’s attorney and an execution issued and returned unsatisfied, whereupon, on February 3, 1894, an order in supplementary proceedings was issued and. plaintiff was examined thereunder on the eighth of that month. On March 1, 1894, over three and a half years after commencement of the action and more than one year after same had been dismissed for want of prosecution, the plaintiff moved to open his default in the motion to dismiss, and his motion was granted and the default opened by the order from which this appeal is taken. Not a single fact as above set forth was denied by plaintiff’s attorney nor by plaintiff’s own affidavit, except that he says he did not personally hear about the case until the judgment was entered, which was more than one year before his motion. The defendant’s judgment was for costs only, and the dismissal of the plaintiff’s action was not on the merits; hence he can bring a new action if he has any cause, and if he does he needs to amend his complaint, for it is indeed doubtful whether it sets forth a cause of action. His motion should have been denied, leaving him to his new action. Judge Yah Brunt says in James v. McCreery, 27 N. Y. St. Repr. 88 : “ There is no good reason why all the damages arising from the negligence of a party or his attorney should be visited upon the opposing party to the action, as would be the case if defaults were to be opened as a matter of course. The plaintiff in this case has been guilty of great laches in the making of this motion and should be remitted to a new action for the enforcement of his rights, if he has any.” And see Wygant v. Brown, 27 N. Y. St. Repr. 4.

The order is reversed and plaintiff’s motion denied.

McCarthy, J., concurs.

Order reversed and motion denied..

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Van Wyck, J.

The record shows that plaintiff entered into an agreement in August, 1890, with his attorney to give him twenty-five per cent of his recovery in this action, which was commenced in that month, and a warrant of attachment was issued herein and defendant’s property attached thereunder ; that plaintiff never served a notice of trial or filed a note of issue herein; that in December, 1892, defendant made a motion to dismiss for want of prosecution and served notice of same upon plaintiff’s attorney, who sought and secured an adjournment of same for two days and then defaulted, upon which defendant’s motion was granted, with costs of action to date, whereupon, on January 11, 1893, [531]*531defendant entered a judgment against plaintiff wholly for costs, after notice of entry of same and taxation of costs was duly given to plaintiff’s attorney and an execution issued and returned unsatisfied, whereupon, on February 3, 1894, an order in supplementary proceedings was issued and. plaintiff was examined thereunder on the eighth of that month. On March 1, 1894, over three and a half years after commencement of the action and more than one year after same had been dismissed for want of prosecution, the plaintiff moved to open his default in the motion to dismiss, and his motion was granted and the default opened by the order from which this appeal is taken. Not a single fact as above set forth was denied by plaintiff’s attorney nor by plaintiff’s own affidavit, except that he says he did not personally hear about the case until the judgment was entered, which was more than one year before his motion. The defendant’s judgment was for costs only, and the dismissal of the plaintiff’s action was not on the merits; hence he can bring a new action if he has any cause, and if he does he needs to amend his complaint, for it is indeed doubtful whether it sets forth a cause of action. His motion should have been denied, leaving him to his new action. Judge Yah Brunt says in James v. McCreery, 27 N. Y. St. Repr. 88 : “ There is no good reason why all the damages arising from the negligence of a party or his attorney should be visited upon the opposing party to the action, as would be the case if defaults were to be opened as a matter of course. The plaintiff in this case has been guilty of great laches in the making of this motion and should be remitted to a new action for the enforcement of his rights, if he has any.” And see Wygant v. Brown, 27 N. Y. St. Repr. 4.

The order is reversed and plaintiff’s motion denied.

McCarthy, J., concurs.

Order reversed and motion denied..

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Bluebook (online)

8 Misc. 530, 28 N.Y.S. 769, 59 N.Y. St. Rep. 267, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gross-v-granite-state-provident-assn-nynyccityct-1894.