Little v. Merrill

¶1Appeal from an order of the County Court, Albany County, denying the defendant’s motion to open his default and to vacate the judgment entered against him. The action was instituted by the service of a summons. The defendant defaulted in appearance and the plaintiff procured the entry of a default judgment' upon filing a verified complaint and presenting oral proof of the cause of action before the County Judge. The complaint alleged that the plaintiff had lent the defendant the sum of $900, to purchase an automobile and that the defendant had failed to repay any part of it. The affidavit of the defendant submitted upon the motion to open the default asserts that the defendant had communicated with the “ office of the Attorney for the plaintiff ” after service of the summons and had been told that he would receive further notice before any action was taken. This is denied by the affidavit of the plaintiff’s attorney. As to the proposed defense to the action, the defendant claimed that the plaintiff had purchased the automobile himself and had made a gift of it to the defendant upon the understanding that the defendant would “ drive the plaintiff to any place designated by the plaintiff, and whenever plaintiff desired, at hours other than ■ working hours of defendant ”. The County Judge characterized the defense as one of a “ bizarre nature ” and expressed his belief that the defendant’s statement that he had communicated with someone in the office of the plaintiff’s attorney was “ a palpable falsehood ”. The Judge concluded that “ this is one of the comparatively rare cases where the interest of justice would be better served by permitting the judgment to stand”. The opening of a default rests in the discretion of the court. We find no abuse of discretion in this ease. Order unanimously affirmed, with $10 costs. Present — Foster, P. J., Bergan, Coon, Halpern and Zeller, JJ.