
    Royal E. Deane et al., Resp’ts, v. John A. Loucks, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 29, 1890.)
    
    1. Default—Opening.
    A default will not necessarily be opened upon the presentation of an affidavit of merits where there are no suspicious circumstances; but the-applicant must not only show a reasonable ground for opening the default, but the burden is upon him to establish Ms good faith otherwise than simply by an affidavit of merits.
    3. Bar—Breach of contract.
    The action was for work, labor and services, and the answer set up a counterclaim for breach of the contract by reason of defective materials- and workmanship. On motion to open a default, Held, that a recovery upon a complaint of this description would be a bar to an action for damages because of defective work or materials, and hence that the default should be opened to allow defendant to prove his counterclaim on-terms.
    Appeal from order denying motion to open default
    
      Brunner & Bennett, for app’lt; E. C. Stone, for resp’ts.
   Van Brunt, P. J.

We think that the learned counsel for the-appellant is entirely mistaken in supposing that the doctrine has ever been established that when an affidavit of merits is presented and there are no suspicious circumstances connected with the application a default will necessarily be opened. Although decisions to that effect may be found, yet still the practice of the-court has been against so loose a procedure as this; and the applicant must not only show a reasonable ground for opening the default, but the burden upon him is to establish his good faith otherwise than simply by an affidavit of merits.

If there were nothing but this in the case at bar we would think that the order appealed from was correct. But upon an inspection of the record it appears that the learned judge was influenced largely in coming to the conclusion at which he arrived by the consideration that although the default was held, the defendant could maintain an action for the same cause desired to be set up in the counterclaim in the proposed answer. The action was brought to recover for work, labor and services and for material furnished, which was alleged to be of the reasonable value of a. certain sum. The defense sought to be interposed was that the work and labor was done and the materials furnished under a written agreement containing certain stipulations and that such stipulations were not complied with, and in consequence of the defective workmanship and defective materials the defendant had suffered damage to a large amount.

It is well settled that a recovery upon a complaint of this description is a bar to any action for damages because of defective work or materials. See Gates v. Preston, 41 N. Y., 113, in which it was held that a judgment by default in favor of a physician for professional services is a bar to any action by the defendant against him for malpractice in the performance of such services. And the principle there laid down is recognized in Goebel v. Iffla, 111 N. Y., 171; 19 N. Y. State Rep., 105. The reason of the rule is manifest, because a recovery by the plaintiff upon the ground that the services were worth the amount alleged in the complaint is absolutely inconsistent with the claim that the services were worthless and were detrimental to the defendant. ,

So, in the case at bar, if the plaintiffs’ work, labor and materials were worth the amount set out in the complaint, then the defendant could have no cause of action because of defective materials and workmenship.

We think, therefore, that the default should have been opened in order to enable the defendant to put in his counterclaim, upon payment of the costs of all proceedings before notice'of trial, the disbursements in the entry of judgment and ten dollars costs of the motion.

The order should, therefore, be reversed, with ten dollars costs and disbursements, and the default opened upon the conditions above mentioned, the costs to be offset against each other so far as practicable.

Bartlett, and Barrett, JJ., concur.  