Mann v. Provost
New York Supreme Court
Motion to open a judgment entered upon failure to answer and to allow defendant to answer. This action was brought by Abijah Mann, Jr., and Charles A. Mann against David Provost. It was an action to compel the determination of a claim made by defendant to certain real estate owned and possessed by the plaintiffs, at Green Point, Kings County.
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Motion to open a judgment entered upon failure to answer and to allow defendant to answer. This action was brought by Abijah Mann, Jr., and Charles A. Mann against David Provost. It was an action to compel the determination of a claim made by defendant to certain real estate owned and possessed by the plaintiffs, at Green Point, Kings County. It was a proceeding “ to compel the determination of claims to real property,” according to Title 2, of Chapter 5, of Part 3, of the Revised Statutes, (2 Rev. Stats., 312, § 1), and was prosecuted by action pursuant to section 449 of the Code. The…
1Opinion of the CourtBirdseye, J.
I am satisfied that the failure to serve the answer arose from desire entertained by defendant’s counsel in good faith, to correct what he believed to be an irregularity, and thus to expedite the proceedings. The defendant is not in any manner connected with the delay. I cannot resist the conclusion that here is a case of surprise or excusable neglect, calling for the interposition of the court, if there is any legal authority for granting it. The counsel, acting in good faith, suffered the default. I cannot examine the merits of the
*448defendant’s case, and for an apparent want of them, refuse…
2Cases cited2 opinions
- Hammond v. TillotsonNew York Supreme Court · 1854
- Williams v. CoxNew York Supreme Court · 1831