Morris v. Kahn , 62 N.Y.S. 1040 ( 1900 )

Corlan, J.

This is an appeal from an order opening the defendant’s default. The summons was served without any complaint, and contained the usual indorsement in such cases, that upon default to appear or answer, judgment for a specified sum would be taken. Conceding the amount demanded to be due, as upon contract, and not being authorized or advised of the gravamen of any complaint, the defendant was advised that a defense to the action would be useless, unless, perhaps, it was desired to delay a judgment. Failing to appear or answer, therefore, a judgment was entered upon a complaint, charging fraud, and upon such judgment the defendant was arrested upon an execution issued against his person. The office of an affidavit of merits is to advise the court that the defendant has a defense to the cause of action, or some part of it, which, if proven, would tend to defeat the amount sought to be recovered. And conceding the amount to be due, as claimed, it would seem that an affidavit of that character could hardly with reason be interposed. We think the matter was well within the discretion of the justice who granted the order at the Special Term, and that the defendant was clearly entitled to an opportunity to disprove the charge of fraud alleged in the complaint, and that the discretion was not unreasonably exercised to the prejudice of the plaintiffs, and are, therefore, of the opinión that the order appealed from should be affirmed, with costs.

Fitzsimons, Oh. J., concurs.

Order affirmed, with costs.