
    Elias Benedict et al., Resp’ts, v. George T. Arnoux et al., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 15, 1895.)
    
    1. Judgment—Opening default—Defense.
    On an application to open a default suffered through mistake and without loches, the validity of any proposed defense, unless clearly frivolous, will not be passed upon.
    3. Same—Unconscionable defense.
    Such application will not be denied on the ground that the proposed defense is unconscionable.
    Appeal from an order denying a motion to open a default and permit defendants to come in and answer.
    
      W. W. Niles, for app’lts; C. N. Bouvee, Jr., for resp’ts.
   Per Curiam.

Without passing upon the question as to the validity of any defense set up in the answer proposed to be served, we think that it is apparent that the default occurred through mistake, and that, by reason of such mistake, the defendants should not be deprived of the opportunity of raising the question, in a manner in which it can be reviewed, as to whether the answer sets up a defense or not. Where it is apparent that the default has been suffered through mistake, and there is no loches, it does not seem to be proper to pass upon the validity of any defense proposed to be interposed, unless it is clearly frivolous.

It is claimed, however, upon the part of the plaintiffs, that the proposed defense is an unconscionable one, whatever that may mean. The court of appeals has held that all defenses which are defenses are entitled to the same consideration by the court, and that a defense is a defense, whatever may be our private feelings in respect to it.. We think, therefore, that the defendants should have been allowed to put in their answer upon payment of the costs of the motion and all costs which have been incurred in the action.

The order should be reversed, with $10 costs and disbursements, and the defendants allowed to answer, upon paying the costs of the motion and the costs which had accrued in the action at the time of the making of the motion.  