
    Mary Carey et al., Adm’rs, Resp’ts, v. James J. Browne, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed February 15, 1893.)
    
    1. Default — Excuse foe failure to answer.
    On motion to open a default, it appeared that, shortly after service, defendant was taken ill and confined for five weeks in a dark room with disease of the eye. and that he lost the summons; that, on recovering, he wrote for a copy, but received no answer. Held, that the default was so far excused as to entitle him to be let in on terms.
    
      2. Same — Answer.
    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.
    Appeal from order of special term denying defendant’s motion to open judgment entered against him upon his default.
    The action was to recover $500 as damages, being the value of an oil painting called the “ Birth of Venus,” alleged to belong to Frank Carey, plaintiffs’ intestate, at the time of his death, on April 2,1890, and wrongfully converted by defendant about January 20, 1892.
    In the moving affidavit, among things, it is stated that defendant purchased said picture of one Stephen W. Carey, who was a brother of deceased, and paid $350 therefor.
    
      Magner & Hughes (Foley & Wing, of counsel), for app’lt; H. Dunkel, for resp’ts.
   Mayham, P. J.

The affidavits on this motion disclose that the defendant was a summons 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 to plaintiffs’ 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 § 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., 206; Bank v. Gifford, 40 Barb., 659; Ellsworth v. Campbell, 31 id., 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, 17 J. & S., 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 plaintiffs for all steps taken by them 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 ten dollars cost of this motion and printing disbursements and serving an answer herein, within twenty 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.

Putnam and Herrick, JJ., concur. '  