
    (67 Hun, 516.)
    CAREY et al v. BROWNE.
    (Supreme Court, General Term, Third Department.
    February 15, 1893.)
    1. Opening Judgment by Default—Affidavit.
    Under Code Civil Proc. § 783, providing that the court may, on good cause shown, and on terms, relieve a party from the consequences of an omission to plead within the required time, a judgment by default will be opened where defendant’s affidavit shows that a short time after he was served with the summons he became seriously ill, and remained so for five weeks, during which time the summons was lost, and as soon as he was sufficiently recovered he wrote plaintiff’s attorney for a copy, and heard nothing further from the suit until presented with an execution therein.
    2. Same—Serving Proposed Answer—When Not Necessary.
    Where, in an affidavit to open a default judgment, sufficient appears to show the nature of the defense and the good faith of the moving party, it is not absolutely necessary to serve the proposed answer with the moving papers.
    Appeal from special term.
    Action by Mary Carey, as administratrix, and Augustus Stumpfel, as administrator, of the goods, chattels, and credits of Frank Carey, deceased, against James J. Browne, to recover damages for the value of an oil painting entitled the “Birth of Venus,” alleged to belong to Frank Carey at the time of his death, April 2, 1890, and wrongfully converted by defendant about January 20, 1892. From an order denying defendant’s motion to open a judgment entered against him by default for $553.34, defendant appeals.
    Reversed.
    Defendant’s affidavit to open the default disclosed the fact that he purchased the picture in question from Stephen W. Carey, a brother of plaintiff’s intestate, and that he paid therefor $350 to said Stephen W. Carey, who claimed the full right to sell the picture, and that it never belonged to plaintiffs.
    Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.
    Magner & Hughes, (Foley & Wing, of counsel,) for appellant.
    H. Dunkel, for respondents.
   MAYHAM, P. J.

The affidavits on this motion disclose that the defendant was served with a summons in this action without a complaint, and that a short time after such service he was taken seriously ill, and remained in that condition for about five weeks, during most of the time compelled to remain in a dark room by reason of some disease of his eyes; that while in that condition he lost the summons, and as soon as he was sufficiently recovered he wrote plaintiff’s attorney for a copy of the summons, but got no response until presented by the sheriff with an execution issued upon the judgment obtained by default in the action. I think the defendant so far excused his default as to entitle him to be let in to defend this action on terms. The defendant, in his affidavit, states facts in addition to the affidavit of merits, which show that he purchased this picture, and paid for it, of the person in whose possession it was; and while on a trial it may turn out that the person of whom he purchased it was not the true owner, and had not the right to sell the same, yet, I think he should, if he desire, have the opportunity of litigating that question, and that he has sufficiently excused his default to entitle him to relief under section 783 ■ of the Code of Civil Procedure. On the whole proof on this motion the title to the picture in controversy is by no means free from doubt, and while the granting or refusing a motion to set aside a judgment is to a great extent a judicial discretion, to be exercised by the special term, the exercise of that discretion in favor of the judgment creditor should not be without due regard to the protection of the rights of the party who had not had his day in court, and who excuses his default. Fassett v. Tallmadge, 15 Abb. Pr. 206; Bank v. Gifford, 40 Barb. 659; Ellsworth v. Campbell, 31 Barb. 134. It is not absolutely necessary to serve with motion papers to open a default the proposed answer, if sufficient appears in the affidavit to show the nature of the defense, and the court can see the good faith of the party in asking to defend. Palmer v. Van Orden, 49 N. Y. Super. Ct. 89. No injustice can be done the plaintiff by allowing the judgment to stand, and at the same time permitting the defendant to come in and defend on such terms as will indemnify the plaintiff for all steps taken by her after the default. The defendant may answer in this case upon payment of all costs and disbursements after defendant’s default, which are included in the judgment, and $10 cost of this motion and printing disbursements and serving an answer herein, within 20 days after the announcement of this decision; the judgment already entered to stand as security, and on compliance with above conditions the order of special term appealed from is reversed. All concur. 
      
       Code Civil Proc. § 783: “After the expiration of the time within which a pleading must be made; or any other proceeding in an action after its commencement must be taken, the court, upon good cause shown, may, in its discretion, and upon such terms as justice requires, relieve the party from the consequences of an omission to do the act, and allow it to be done, except as otherwise specially prescribed by law. ”
     