
    Juliette Wight, Adm’rx, Resp’t, v. James Gordon Bennett, App’lt.
    
      Supreme Court, General Term, Second Department,
    
    
      Filed February 10, 1890.)
    
    Default—When will not be opened.
    Defendant in 1886 moved to set aside a judgment, entered by default in an action for libel. The motion was denied, with leave to answer. Defendant appealed to the general term and court of appeals, both of which courts affirmed the order, with leave to apply to open the default. In the meantime the plaintiff died. Held, that as defendant made a contest on a technical point so long that justice cannot now be done to the deceased plaintiff, the motion to open the default was properly denied.
    Appeal from order denying motion to open default and for leave to defend on the merits or to have the damages re-assessed, and from order denying motion to re-settle the order.
    
      Joseph H. Ghoate.iov app’lt; Chauncey Shaffer, A. N. Weller and B. W Downing, for resp’t.
   Barnard, P. J.

The complaint in this action avers that in September, 1883, the defendant published a false and defamatory charge against Bussell Wight, the plaintiff’s deceased intestate. The complaint was verified in September, 1884, and the papers show that the defendant persistently avoided the service thereof upon him, even to the extent of violating his word and an appointment of a place of meeting for that purpose.

The service was made under circumstances which made it a matter of doubt whether it was a good service. The plaintiff treated the service as good and had his damages assessed by a jury. The jury gave a very large verdict. This was in June, 1886. In July, 1886, the defendant made a motion to set aside the proceedings because of a defective service of the complaint. The motion was denied but with leave to defendant to apply to open the default and answer the charge. The defendant did not accept the terms but appealed from the order, and the same was affirmed at general term with a like permission to apply to open the default and have a trial on the merits. The original plaintiff was then alive. The defendant appealed to the court of appeals and the order was affirmed. The plaintiff is now dead and the suit has been revived in the name of his administratrix. The defendant now makes a motion to be permitted to defend.

The motion was denied and this appeal is brought from that order. The order should be affirmed. The defendant has made a contest upon a technical question of service so long that now justice cannot be done to the deceased plaintiff’s case. If an answer be permitted, the issue in this action must be tried without the testimony of the witness who may be said alone to know the facts showing the falsity of the libel. If an answer is permitted unless a reduction of the verdict or inquisition be made the party who ought to have the right to accept or reject is not here to answer, and if the plaintiff as administratrix refuses she must try the deceased man’s case without the evidence she ought to have in support of her claim. A trial would now be substantially a default against the plaintiff She ought not to be forced to accept a reduction under circumstances such as now exist in the case.

The order should be affirmed, with costs.

Pbatt, J., concurs.  