
    John Drohan et al., Resp'ts, v. Marietta Norton, Impl'd,, App'lt.
    
      (City Court of New York,
    
    
      General Term,
    
    
      Filed December 22, 1892.)
    
    1. Judgment—Opening.
    Where a defendant positively swears that she was not served and did not appear or answer, and alleges that she is not liable to plaintiffs, it is proper to open the judgment and allow her to litigate the issue, notwithstanding a positive affidavit of service and an appearance for her by an attorney upon his own responsibility.
    (Ehrlich, Oh. J., dissents.)
    2. Same—Laches.
    
      Laches in moving is not a bar to such motion where the plaintiffs failed for seven years to attempt to collect the judgment.
    Appeal from order denying motion to set aside a judgment.
    
      Anthony Barrett, for app’lt;
    
      James Kearney, for resp’ts.
   Fitzsimons, J.

This action was commenced December 18, 1882, to recover the sum of $375.23 for goods alleged to have been sold to defendants in 1879. Judgment was obtained by default against defendant, Murray. Plaintiffs claim the defendant, Norton, appeared and answered, and that judgment was obtained, against her October 17, 1883; that execution was issued October 24, 1883, and returned unsatisfied. Nothing more was done by plaintiffs until May 28, 1890, when they issued another execution, which was also returned unsatisfied.

Supplementary proceedings were then instituted against defendant, Norton, on December 11, 1891.

Upon the service of said order for her examination as a judgment debtor, Norton moved to set aside said judgment, which motion was denied.

The special term justice assigned the following reason for such denial:

“ In view of the positive affidavit of service, and the appearance and sworn answer, motion is denied.”

The defendant, Norton, swears that she was not served with the summons and complaint herein. That she did not appear or answer; that she never was the partner of the defendant, Murray, and that the goods for the value of which this action is brought were not sold or delivered to her, and that she did not know of this judgment until May, 1890. Certainly the plaintiff has no claim against her if these "facts are true.

And for their determination they should be submitted to a jury.

This is a right, not a privilege, that all parties to actions of this character are entitled to.

The appellants contend that she should be deprived of that right because of loches on her part.

That she knew of the existence of said judgment against her at least as early as May, 1890, and that she took no action in reference thereto until December 11, 1891.

It is true that the defendant Norton was extremely careless. She should have moved sooner than she did to set aside said judgment, but the plaintiffs have been equally careless in the assertion of their rights, for they slept for seven years; did nothing during that period of time, and not until after the lapse of seven years did they deem this judgment worthy of collection. Evidently, both plaintiffs and defendant Norton are careless persons, but she should not be compelled to bear more than a reasonable punishment for her negligence; but it would not be reasonable or just to compel her to pay a debt she did not contract, simply because she was careless.

The complaint made by plaintiffs that their witnesses are dead or scattered, and testimony lost, and, therefore, that the judgment should not be vacated, is not justified by the appeal record, for it appears that his clients are alive, and they are able to prove the sale and delivery of the goods in suit; besides, if they as diligently pursued their legal remedies, when they obtained the judgment in 1883, as they are doing now, they would not be laboring under such supposed disadvantages; and because they failed in their duty surely defendant Norton should not suffer to the extent' suggested.

The order appealed from is a discretionary one, it is true, but in the interests of justice it is re viewable and reversible.

The action of Mr. Barrett is satisfactorily explained. I believe him when he says that he acted upon his own responsibility in all things done by him in this matter and for the purpose of aiding the widow of a deceased friend, and was willing to pay out his own money for that purpose she being a sick and sorrowing woman.

Assuming that Mrs. Norton was served with the summons and complaint or either of them, I am sure that she did not sign the answer and that she knew nothing of this judgment until May, 1890, and as she appears to have a meritorious defense we order and adj udge as follows: That the judgment herein as against the defendant, Norton, be vacated and set aside; that she be allowed to appear and answer herein within six days after the service of the order entered hereon; that this action be set down for trial peremptorily for 6th of February, 1893, with $20.00 costs to plaintiffs and their appeal disbursements.

The order appealed from is reversed and we direct that an order in accordance herewith be entered and substituted in the place and stead of the order appealed from.

Newburger, J., concurs.

Ehrlich, Ch. J.

I dissent for the reason stated in the memorandum of the special term justice.  