Tooker v. Booth

Newburger, J.

This action was commenced on the 15th day of December, 1886, by the service of the summons on the defendant. On the 16th day of December, 1886, defendant appeared by attorney. On the 12th day of October, 1887, the complaint was served on the defendant’s attorney, and on the 12th day of December, 1887, judgment was entered herein by default and execution was issued upon said judgment and returned February 11, 1888.

In December, 1893, proceedings were instituted by plaintiff for the examination of a third party in supplementary proceedings, it appearing that there is in the hands of such thir(f party property sufficient to satisfy the judgment herein.

After the institution of these proceedings defendant moved to open the default, vacate the judgment herein and for leave to defend, which motion was granted, and from the order entered thereon this appeal is taken.

We think the motion should have been denied. More than six years had elapsed since the entry of the judgment. The explanation sought to be given by the defendant for the delay is not satisfactory. It is ap])arent that the defendant’s application is not prompted by a desire to defend, but rather from the fact that she is about to collect a legacy left her, and thus the plaintiff’s claim is now collectible. The defendant’s application was not made with that diligence that the law requires (Wygant v. Brown, 27 N. Y. St. Repr. 4; Drummond v. Matthews, 42 id. 117), and should have been denied. For these reasons the order appealed from should be reversed and the motion to open default denied, with costs.

VahWyck and McCarthy, JJ., concur.

Order reversed and motion denied, with costs.