
    JACOB B. TALLMAN, Respondent v. DANIEL J. SPRAGUE, Appellant.
    
      Judgment taken for want of answer—Motion to open the default—Terms.
    
    In this case the defendant asked the court to open this default and permit him to plead partial payment and usury, which the court denied unless the defendant gave a bond for the full amount of the note, with two sureties justifying in $5,000, which condition defendant claims to be onerous and deprives him of Ms defence, as he is unable to give such a bond. Held, that the affidavits in this case were too vague and uncertain to authorize the court to hold that usury was shown to have existed under the facts shown, especially when the form of the statements on this subject intimates that there are other facts not stated wMch would be relevant and should be considered before holding that there was a defence of usury.
    The' defendant also claimed that he had a defence of payment or partial payment by the giving of a note for about half of the amount of the note in action. If this note was given, it would not have been a payment. The defendant’s affidavit left it doubtful as to whether the note was ever given to plaintiff, while the affidavits of the plaintiff are to the effect that the note was not given. The court would have been justified in denying the motion absolutely.
    Before Sedgwick, Ch. J., and Gildersleeve, J.
    
      Decided March 14, 1892.
    • Appeal by defendant from order denying his motion to open a judgment taken for want of answer.
    
      
      J. Noble Hayes, for appellant, argued:—
    I. It is obvious that there is a serious issue between the parties as to the payment of $1,666, by the defendant, on account of the note in suit, which ought to be tried. It is equally obvious that the defendant has a meritorious defence of usury to the note in suit, which he could have availed himself of but for this “ snap judgment.” It is also obvious that the plaintiff overreached the defendant in obtaining the judgment of which the plaintiff had no knowledge until five weeks after the same was entered. And that the defendant was justified in believing that no further proceedings would be had in this action, or, at least, until the final disposition of the motion in the U. S. Court referred to, which was on Nov. 12th, 1892, fourteen days after the entry of the judgment.
    II. It is an abuse of discretion to deny this motion and impose such terms as leave the defendant at the mercy of the holder of this second note for $1,666, which he may thus be obliged to pay twice. The conditions are onerous, and weigh down and crush the defendant’s rights, and are tantamount to an absolute denial of the motion. The courts on appeal have disapproved onerous conditions imposed in opening defaults. In the case of Fox v. Baker, 2 Wend., 244, in setting aside an inquest, defendant was put under term of withdrawing a plea of the statute of limitations. This decision was disapproved in Allen v. Mapes, 20 Wend., 633, and Lovett v. Coroman, 6 Hill, 223. A case directly in point is Rice v. Maddock, 7 N. Y. Suppl., 632, C. P., when a default was ordered to be opened on defendant’s payment of costs of motion and giving of a bond to pay the judgment should it be affirmed, but she was unable to procure a satisfactory bondsman. Held, on appeal, that the default should be opened on plaintiff’s payment of costs of motion, and the giving of such bond as she is able to procure. See also, Hinz v. Starin, 25 State Reporter, 329.
    
      III. The order is appealable upon all grounds and the early cases to the contrary have been overruled. Security Nat. Bank v. Nat. Bk. Comm., 2 Hun, 287, where the court said : “ When a judgment has been obtained by default an order refusing to open it upon application made on affidavits showing merits, and a reasonable excuse effects a substantial right and is appealable.” Allen v. Mapes, 20 Wend., 633; Lovett v. Coroman, 6 Hill, 223; Rice v. Maddock, 7 N. Y. Suppl., 632 C. P.; Hinz v. Starin, 25 State Rep., 329.
    IV. The defence of usury is now regarded as a meritorious defence and entitled to the same consideration as all other legal defences. McQuen v. Babcock, 3 Keys, 428; Barnett v. Phillips, 10 Hun, 109; Bank of Kinderhook v. Gifford, 40 Barb., 659. Where Peckham, J. held : “ that on opening a default properly excused, this court will not impose as a condition that the defendant shall not set up usury or the statute of limitations.” The proper order would have required no terms under the circumstances of the case, or if any, only that the judgment should stand as security, and that costs of motion should be imposed, not that an impossible bond with sureties should be given.
    
      Michael Jacobs, for respondent, argued:—
    I. The order made was a discretionary one. The application was made under section 724 of the Code of Civil Procedure, which provides “ that the court may * * * in its discretion and upon such terms as justice requires * * * relieve a party from a judgment,” etc. The very language of the section describes the application as a discretionary one, and expressly provides “ that the terms upon which relief is to be granted rests with the judge to whom the application is made.”
    H. The order is not appealable. The order being discretionary, the terms on which it is made cannot be reviewed on appeal. Foshay v. Drost, 4 Bosw., 664; Jacobs v. Marshall, 6 Duer., 669; Lord v. Vanderburgh, 15 How., 362; Whitaker v. Des Forse, 7 Bosw., 678; Dorlan v. Wilson, 9 Civ. Pro. R., 69. And even if the order be regarded as appealable, there was no abuse of discretion, and in the absence of the same there is nothing to review.
   Per Curiam.

The defendant asked that the default be opened, that he might make the defence of usury. The affidavits were too vague and uncertain on this subject to permit it to be held that usury was shown. The mere fact of giving a note and then at its maturity another note for a greater amount, does not necessarily involve usury, especially when the form of the statement on the subject intimates that there are other facts not stated which would be relevant and should be considered before holding that there was usury.

The defendant also maintained that he had a defence of payment or partial payment. As to the first, the affidavits did not support it. The second was said to be the giving of the defendant’s note for about the half of the amount of the note in action. If given, this would not have been a payment. The defendant’s affidavits left it doubtful as to whether it was ever given to plaintiff. The affidavits of the plaintiff are to the effect that it never was.

The court would have been justified in denying the motion absolutely.

Order affirmed, with $10 costs.  