I dissent and vote for an affirmance of the order.
The undisputed facts compel the conclusion, to my mind, that the defendant’s default was intentional and premeditated. I cannot doubt that he left the city of New York without the slightest intention of returning until it suited his convenience to do so. He simply relied upon the facility with which defaults have commonly been opened in this city with no greater penalty than the imposition of a bill of costs. In my opinion the defendant’s deliberate default exhibited a clear contempt of the power or willingness of the court to assert its authority. The former order of this court authorized the defendant to renew his application at Special Term to open the default “upon satisfactory proof that the defendant was unable to come to New York to be present at the trial of the case and that he has a defense on the merits.” He certainly has not established by satisfactory proof that he was unable to come to New York, and the prevailing opinion does not refer to any such proof. On the contrary, the proof is all to the effect that he could have returned if he had chosen, although perhaps at some personal inconvenience. • As to the merits, the defendant now offers a radically different defense from that pleaded in his answer, and one which, upon the present state of the pleadings,, he could not prove. His answer denies liability because plaintiff’s stocks were sold by Post & Flagg, his brokers, without his knowledge or authority. He now says that the stocks were sold by his orders and authority, upon the faith of a letter written to him by plaintiff which he treats as a direction to *805sell, although there is certainly some ground for her contention that it merely sought advice. The defendant has, therefore, neither excused his non-appearance nor shown a good defense upon the' pleadings as they stand, and in my opinion is not entitled to the favor of the court.
Order reversed, motion granted, default opened and new trial granted upon terms stated in opinion. Order to be settled on notice.