London v. Schneider

137 N.Y.S. 694

Opinion

BIJUR, J.

.The respondents were sureties on an undertaking on appeal. After the appeal had been dismissed, and after repeated demands for payment on the respondents, appellant brought suit for some $500 due on the undertaking. Thereafter respondents, by their attorneys, paid .plaintiff’s attorneys $200. This they now claim to have been in full. In passing, it may be remarked that one of their then attorneys presents an affidavit denying that fact.

Subsequently, after further demands for payment of the balance of the amount due, plaintiff entered judgment for the full amount upon which they have acknowledged the $200 due. Not only does the default opened by this order appear to have been deliberate and intentional, but the defense sought to be introduced upon the opening is palpably unavailable as matter of law under the circumstances disclosed by the moving papers. See Nassoiy v. Tomlinson, 148 N. Y. 330, 42 N. E. 715, 51 Am. St Rep. 695; Laroe v. Sugar Loaf Dairy Co., 180 N. Y. 367, 73 N. E. 61. .

Order reversed, with $10 costs and disbursements, motion denied, with $10Dcosts, and judgment reinstated. All concur.