M'Kinstry v. Edwards
New York Supreme Court
On a motion to set aside the default, and that the defendant have leave to plead, on the sole ground that he had merits, the plaintiff not having lost a trial.
1Per curiam
When a party swears to merits, the court will strongly incline to let him in, but he must be able to suggest some excuse for not having pleaded, such, perhaps, as accident or inadvertence. Here the defendant does not attempt to give any reason at all, and, therefore, he must take nothing by his motion.
Rule refused.(d)(d) “ Where the default has been regularly entered, also, the court will in some cases relieve the defendant, and let him in to plead, upon terms. It was formerly the practice to set aside a regular default, on an affidavit of merits, only where the defendant could show some…
2Cases cited3 opinions
- Davenport v. FerrisNew York Supreme Court · 1810
- Philips v. HawleyNew York Supreme Court · 1810
- Allen v. ThompsonThe Superior Court of New York City · 1828