Smith v. Hoffman

8 A.D.2d 958, 190 N.Y.S.2d 770, 1959 N.Y. App. Div. LEXIS 7553

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 14, 1959
• Status: Published

Opinion

In an action to foreclose an installment contract for the sale and purchase of real property, commenced in 1944, the appeals are (1) from an order of the County Court, Suffolk County, entered February 26, 1958 granting respondent’s motion to vacate a judgment entered against her on July 26, 1957 on her default, upon conditions, and (2) from an order of said court entered April 29, 1958 denying appellant’s motion for reargument. Order entered February 26, 1958 affirmed, with $10 costs and disbursements. In our opinion, appellant not only failed to make a satisfactory explanation for the 13-year delay in entering judgment upon default, and failed as well to resolve the issues of fact as to respondent’s status and the nature of the payments eoneededly made, but likewise failed to establish in the absence of a default clause in the contract that respondent’s payments on account of the contract were forfeited in 1944 and that the balance then due was accelerated without any rights surviving in the purchasers (cf. Hinman v. Hinman, 146 Misc. 786, 789; 1 Warren’s Weed, New York Real Property [4th ed.], p. 670, § 11.04; Davis v. Rosenzweig Realty Operating Co., 192 N. Y. 128; Elterman v. Hyman, 192 N. Y. 113; Feldblum v. Laurelton Land Co., 151 App. Div. 24, affd. 210 N. Y. 594). Appeal from order entered April 29, 1958 dismissed, without costs. No appeal lies from an order denying a motion for reargument. Wenzel, Murphy, Hallinan and Kleinfeld, JJ., concur; Nolan, P. J., concurs, being of the opinion that respondent was entitled to notice of the application for judgment, pursuant to rule 190 of the Rules of Civil Practice.