Philips v. Hawley

6 Johns. 129

• Court: New York Supreme Court
• Decided: May 15, 1810
• Status: Published

Opinion

Per Curiam.

There is no doubt that the plaintiff^ proceedings were regular, and that there has been alaches on the part of the defendant, or his attorney, in not applying at the term next after he was acquainted with the fact of a default having been entered. In any other case,- such a neglect would be fatal, and we would not afford relief; but in- the case of executors and administrators we will relieve, especially when the defendant knew nothing of the default, until it was too late to apply at the last term, and his attorney, though his ignorance was gross, seems not to- have been aware of the consequence of a judgment by default.

Let the default, judgment and execution in the first cause be set aside, and the defendant plead in 8 days after service of a copy of the rule, on payment of the costs of the suit and of this application ;■ and let the proceedings in the second cause be stayed, until a trial can5be had in the first cause;, or if the plaintiff shall discontinue without further proceedings, the defendant must pay the costs of the said suit.

Piule granted,.