Hitchings v. Simmons

53 Misc. 399, 104 N.Y.S. 794

Opinion

Greenbaum, J.

The opening of a default appeals to the discretion of the court and should not be exercised where it may work inequity. It is not denied that plaintiff’s address was scheduled “ unknown ” in the bankruptcy proceedings, and no affidavit is presented by defendant as to his lack of knowledge or of reasonable opportunity to become apprised of plaintiff’s address. There is no doubt that plaintiff’s address could readily have been ascertained, and a failure to explain why the address was not mentioned in the schedules or why plaintiff was not given notice of the bankruptcy proceedings is very significant. Defendant, too, makes no denial of plaintiff’s charge that he concealed assets in bankruptcy. Unless defendant could establish that his failure to give the address of plaintiff or to apprise him by notice of the bankruptcy proceedings was due to his inability to discover his whereabouts, after reasonably diligent and honest effort on his part, his defense would not avail him. Feldmark v. Weinstein, 45 Misc. Rep. 329; Graber v. Gault, 103 App. Div. 514. Under the circumstances here presented the motion will be denied.

Motion denied.