Hogan v. Johnson

241 A.D. 914

Opinion

On reargument order reversed on the facts as matter of discretion and motion to open default granted upon the payment by appellants to the plaintiff of costs of the motion and costs in the action, not exceeding in all twenty-five dollars, to be paid within ten days. Memorandum: To open this default appellants must show (1) a fair excuse for the default, and (2) a meritorious defense. As to (1), the single day’s default is explained. . It was not willful but rather rested on an unwarranted but nevertheless not unreasonable expectation that the single day’s delay in service of the answer would be disregarded by the plaintiff. As to (2), the defense advanced is payment. In support appellant relies on an indorsement on the mortgage papers of a payment sufficient to satisfy the mortgage in full and a duplicate deposit slip relating to a deposit made by the mortgagor to the mortgagee’s account in a bank, which deposit corresponds in amount and date with the credit indorsement on the mortgage papers. A meritorious defense is thus sufficiently shown to warrant its submission to the jury. All concur. [See ante, pp. 653, 914.]