These facts of the defendants are denied by the plaintiffs, but sufficient appears to show a case, as against trustees, to allow defendants to at least have a trial on that issue. The court will not, on affidavits, try such questions (Trascheris agt. Henriques, 14 How., 165; 14 How., 131, 146). As against trustees, the courts are never disposed to deprive the beneficiary of his right to be heard.
The objection is taken that more than one year has elapsed, and that the court has no power to open the judgment. There are powers above and beyond the Code that the court possesses, and it seems to me that in a proper case the court of equity possesses an-undoubted right to give the relief asked.-
Another ground is taken that all of the plaintiffs are not served with notice of motion. All of the plaintiffs were represented by counsel, and are expressly by counsel represented on the appeal and in the action generally (Fol. 886 of the oase). Sandford and Schumaker make affidavits, and theii counsel were duly served.with process, and there is nothing in the case to even infer injustice to them in acting *240in a case where they themselves brought the suit, and have subjected themselves to the necessary consequences of the suit. Td| drive the parties to an independent action to settle the question is unnecessarily harsh when the case can be settled by the suit already in court.
The order was properly made allowing the defendants named in the order to come in and defend.
As to the others the facts present different questions. With a full knowledge of the facts and moves on these facts, the defendants to whom the relief was denied moved to open the case, and after a long delay withdrew their motion, and after that accepted a dividend. It is difficult to see how they can escape from an acquiescence in the judgment as to the property complained of. They had moved on the omission of the Southern Express Company stock, and after withdrawing the motion took a dividend of a share in the notes which plaintiffs claim was the consideration for that property and which defendants must have known was so considered in the judgment. They are again guilty of laches, the court will not favor parties who, having a knowledge of facts, lie by and neglect an opportunity to obtain their rights. The court below was correct in refusing the right to open the judgment to the defendant to whom the relief was refused.
Order affirmed.
Davis, P. J., and Daniels, J., concurring.