
    Isaac Jospe, Plaintiff, v. William Lighte and Charles Lighte, Defendants.
    (Supreme Court, Appellate Term,
    December, 1897.)
    Opening judgment where there is no cause of action — Excuse fbr default. 1
    The court will not open a judgment, rendered in an action, dismissing the complaint upon a default, upon the ground that the judgment was taken against the plaintiff through his mistake, inadvertence, surprise . or excusable neglect (Code of Civil Procedure, § J721), where it is clear that the action cannot be maintained; nor will the court act where the excuse 'offered by. the plaintiff is unsatisfactory.
    Motioh by plaintiff to open affirmative judgment by default.
    A. H. Sarasohn, for motion.
    Ennever & Trautman, opposed.
   Per Curiam.

While the court may, in its discretion, and upon such terms as justice requires, reheve a party from a judgment taken against him through his mistake, inadvertence, surprise or excusable neglect (Code, § 724), the party seeking relief must have merit in his appeal and show that injustice might’ follow a denial of his application.

It appears that the plaintiff on August'8, 1896, paid to the defendants $62 “ for the privilege of fountain and stand situated at 118 Orchard street.” The agreement does not express any term. The plaintiff paid, in addition, a rental of $15 a month; the last payment made being up to April 8, 1897.

About April 1, 1897, the plaintiff was in some manner dis- • possessed, but how or by whom does not clearly appear.. He then went to the defendants, and their bookkeeper said he could do nothing in the matter except to- allow him for the rent from April 1st to April 8th. The bookkeeper thereupon paid the plaintiff $3.75, tore up the old receipt to April 8th, which the plaintiff had handed.over, and gave the latter a new one to April 1, 1897. The .plaintiff accepted this new receipt and the $3.75, and thereafter brought this action for “money had and received and breach of contract.” He evidently abandoned the breach of contract portion of his complaint, however, because he failed to prove as an indispensable ground of recovery therefor any damages whatever, and the action apparently proceeded on the theory of want of consideration or of rescission.

As the plaintiff had the uninterrupted use of the property from August 8, 1896, to April 1, 1897, a period of nearly eight months, it cannot he seriously contended that there was a rescission or such a failure of consideration as to entitle him to the return of the $62, and it was upon this ground that the justice dismissed the complaint. We find no error in the ruling.

Aside from this, the excuse offered by the plaintiff for his default is not of that satisfactory character which would warrant us in granting the motion. Motion denied, without costs.

Present: Daly, P. J.; MoAdam and Bischoee, JJ.

Motion denied, without costs.  