
    Lorzing v. Eisenberg.
    (City Court of New York—General Term,
    October, 1893.)
    On June 10, 1893, an application in good faith was made to open a default where the judgment was entered in May, 1893. Held, that the application should not be denied on the ground of laches, the defendant presenting a meritorious defense.
    The order denying the application reversed and default opened on terms.
    Appeal from an order denying a motion to open a default-
    
      William H. Regem, for plaintiff (respondent).
    
      Fromme Brothers, for defendants (appellants). .
   McCarthy, J.

This is an appeal from an order denying a motion to open a default, and the question is whether, from all the facts presented, the application was in good faith, and whether the defendant presented a meritorious defense, and whether any injustice may be done by such denial. It appears that the judgment was taken in April, 1893, but that the judgment being imperfect, a corrected judgment was entered in May, 1893.

On June 10, 1893, a motion was made to open the default, and the ground of which appears in the affidavits. The motion was denied on the ground of laches.

This was not, in our judgment, an unreasonable delay in seeking to open this default and set aside the judgment, if the application Avas in good faith and there was merit in the defense. See Code Civ. Proc. § 724.

Earl, J., in Ladd v. Stevenson, 112 N. Y. 332, says: “ But, in the exercise of its control over its judgments, it may open them upon the application of anyone for sufficient reason in the furtherance of justice. Its power to do so does not depend upon any statute, but it is inherent, and it would be quite unfortunate if it did not possess it to the fullest extent.”

The application Avas certainly made in good faith, since the actual engagement of counsel in an important litigation at the time was not denied.

Besides, if the defense and counterclaim set forth in the answer can be proved, it seems to me the plaintiff is not entitled to recover, and, therefore, should not have a judgment against the defendant until after a fair and impartial trial.

We think, under these circumstances, a great injustice would be done, and while it is the desire to sustain the discretionary powers of the court, yet where there is an apparent good faith, the court will not act arbitrarily, but Avill give the fullest- and fairest opportunity to dispose of the issues involved. We think, therefore, that the default should have been opened upon payment of forty dollars costs and the disbursements in entering the judgment, and ten dollars costs of the motion to open such default.

The order is, therefore, reversed, Avitliout costs or disbursements, and the default opened and the cause restored to calendar for trial, part IV, for Monday, November 6, 1893, on payment by defendant of the forty dollars costs and disbursements and the ten dollars costs above set forth, the defendant also stipulating to try cause on that day, and that otherwise j'udgment absolute shall he entered against him, such stipulation to be tiled by the appeDant with the clerk of this court within two days of the entry of this order.

Fitzsimons, J., concurs.

Order accordingly.  