
    (72 Hun, 164.)
    RIDLEY et al. v. MANHATTAN RY. CO. et al.
    (Supreme Court, General Term, First Department.
    October 13, 1893.)
    Opening Default—Conditions.
    An action for damages by the erection of an elevated railroad was begun March, 1885. Plaintiffs failed to file their complaint and Avere in default November, 1887, and moved March 13, 1893, to open the default, alleging sickness and death of their attorney, and that the absence of a complaint was not known for several years. Held, that the default should be-opened only on waiver of all claims for damages for any period more than six years before March 13, 1893, and on payment of costs of the motion and the action.
    Appeal from special term, New York county.
    Action by Edward A. Ridley and others against the Manhattan Railway Company and the Metropolitan Elevated Railway Company for damages caused by the erection and maintenance of their tracks. From an order opening a default against plaintiffs, defendants appeal.
    Reversed.
    Argued before O’BRIEN, P. J., and FOLLETT and PARKER, JJ.
    Davies, Short & Townsend, (Herbert Barry, Julien T. Davies, and Wm. B. Coles, of counsel,) for appellants.
    William R. Wilder, for respondents.
   PER CURIAM.

This action was begun by" service of a summons on March 26, 1885, and thereafter the defendants duly appeared, and demanded a copy of the complaint. The plaintiffs were given by the defendants two years and a half within which to prepare and serve a complaint, and by the last extension, which was of one day only, the plaintiffs were apprised of the fact that defendants were unwilling to further extend the time to serve the complaint. At the end of such time, namely, on November 3, 1887, the plaintiffs Avere in default, in failing to serve their complaint, and no attempt was made to have this default opened until March 13, 1893,—a period of more than five year's. Upon the motion the excuse offered for what would appear to be gross loches was that the former attorney for plaintiffs was sick, and subsequently died, and that the fact that no complaint was served was not discovered for some years. It appears, however, that the plaintiffs’ present attorney was the brother and associate in business of the former attorney for plaintiffs, and the excuse offered for the loches is thus deprived of much of its force and weight. The-learned judge at special term granted the motion to open the default upon condition that plaintiffs pay $10 costs of motion. 'Such terms, we think, were not sufficient. The effect of opening the default in an action of this kind is toi give the plaintiffs a cause of action for damages extending over a period of more than 14 years, —the greater part of which would be barred by the statute of limitations if a new action should now be brought,—and thus, instead of losing, the plaintiffs would be rewarded for their neglect This,. we think, should not he permitted. Upon opening the default the Judge should have required the plaintiffs to stipulate to waive all claims for damages during any period more than six years prior to March 20, 1893, which was the date of the order to show cause why the plaintiffs’ default should not be opened; and in addition the plaintiffs should have been required to pay to defendants, not only the costs of the motion, but the costs of the action. We think, therefore, that the order appealed from should be reversed, with $10 costs and disbursements, and the motion to open the default denied, with $10 costs.  