
    Max Gross, Respondent, v. The Granite State Provident Association, Appellant.
    (City Court of New York — General Term,
    May, 1894.)
    A motion to open a judgment dismissing an action for want of prosecution, made more than a year after the entry of such judgment, should not be granted, but the plaintiff should be left to his remedy by a new action.
    Appeal by defendant from order opening plaintiff’s default.
    
      Abram A. Joseph, for respondent.
    
      Philip Carpenter, for appellant.
   Van Wyck, J.

The record shows that plaintiff entered into an agreement in August, 1890, with his attorney to give him twenty-five per cent of his recovery in this action, which was commenced in that month, and a warrant of attachment was issued herein and defendant’s property attached thereunder ; that plaintiff never served a notice of trial or filed a note of issue herein; that in December, 1892, defendant made a motion to dismiss for want of prosecution and served notice of same upon plaintiff’s attorney, who sought and secured an adjournment of same for two days and then defaulted, upon which defendant’s motion was granted, with costs of action to date, whereupon, on January 11, 1893, defendant entered a judgment against plaintiff wholly for costs, after notice of entry of same and taxation of costs was duly given to plaintiff’s attorney and an execution issued and returned unsatisfied, whereupon, on February 3, 1894, an order in supplementary proceedings was issued and. plaintiff was examined thereunder on the eighth of that month. On March 1, 1894, over three and a half years after commencement of the action and more than one year after same had been dismissed for want of prosecution, the plaintiff moved to open his default in the motion to dismiss, and his motion was granted and the default opened by the order from which this appeal is taken. Not a single fact as above set forth was denied by plaintiff’s attorney nor by plaintiff’s own affidavit, except that he says he did not personally hear about the case until the judgment was entered, which was more than one year before his motion. The defendant’s judgment was for costs only, and the dismissal of the plaintiff’s action was not on the merits; hence he can bring a new action if he has any cause, and if he does he needs to amend his complaint, for it is indeed doubtful whether it sets forth a cause of action. His motion should have been denied, leaving him to his new action. Judge Yah Brunt says in James v. McCreery, 27 N. Y. St. Repr. 88 : There is no good reason why all the damages arising from the negligence of a party or his attorney should be visited upon the opposing party to the action, as would be the case if defaults were to be opened as a matter of course. The plaintiff in this case has been guilty of great laches in the making of this motion and should be remitted to a new action for the enforcement of his rights, if he has any.” And see Wygant v. Brown, 27 N. Y. St. Repr. 4.

The order is reversed and plaintiff’s motion denied.

McCarthy, J., concurs.

Order reversed and motion denied..  