Adelia Gertrude Stringer, Appellant, v. Charles B. Barker, Respondent

Adelia Gertrude Stringer, Appellant, v. Charles B. Barker, Respondent. First Department, November 12, 1909. Motion and order—power of Special Term. — appeal from one judge to another — opening default —when relief not granted. Where a defendant suffered a willful default on the day set for trial and a motion made at Special Term to open the default was granted on terms, with a pro-visa that upon the defendant’s failure to comply with the conditions the motion would be denied, and the defendant again defaulted by failing to file the required bond, a second order opening the “defaults,” made by another judge at Special Term, is unauthorized, in so far as it purports to open the default suffered at Trial Term. Where the defendant has not shown willingness to comply with the terms of a first order opening Bis default and has pursued dilatory tactics, a second order should not be granted relieving him from his default in failing to comply with the conditions of the first. Appeal by the plaintiff, Adelia Gertrude Stringer, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 10th day of December, 1908. William P. Maloney, for the appellant. Rosslyn M. Cox, for the respondent. [MAJORITY — Scott, J.:] Scott, J.: This is an appeal from an order granting defendant’s motion to open certain defaults. The action is brought to enforce a power of attorney given by defendant to plaintiff authorizing her to collect the sum of $2,500 per annum from the trustees of a certain estate in which defendant lias an interest. After the cause was at issue and on the day calendar, and defendant by his attorney had appeared and answered “ ready,” the defendant suffered what appears to have been a willful and premeditated default. Several weeks after this default, and after the decision and judgment had been signed and entered, defendant moved to open the default and for leave to come in and defend. This motion was granted by an order dated August 13, 1908, upon condition that defendant consent to a reference of the action, the judgment to stand as security, and upon the further condition that within five days after the service of a copy of the order upon his attorney said defendant should file a bond in the sum of $1,000 to pay the fees and disbursements of the referee, and also pay to plaintiff’s attorney the costs herein as taxed. The order further provided that upon failure of defendant to comply with said conditions the motion would be denied, with ten dollars costs. The defendant again defaulted by failing to file the required bond within the time limited by the order, and so far as appears has never paid or offered to pay the costs of the action. A motion to compel plaintiff to accept the bond was denied. Thereupon the defendant moved to open his “ defaults,” and that he be permitted to have his day in court for the purpose of defending this action. This motion was granted, upon payment of ten dollars costs, the judgment to stand as security. From the order granting it plaintiff appeals. The use of the word “ defaults ” in the order seems to indicate that it was intended to open both of defendant’s defaults, to w„it, the one suffered at Trial Term as well as the default in complying with the order of August 13, 1908, which opened the earlier default upon terms. Of course if the present order is intended to open the default suffered at Trial Term it is wholly unauthorized. That question was disposed of by the order of Mr. Justice Dayton, dated August 13, 1908, which was not appealed from, and which could not be virtually vacated and set aside by another justice sitting at Special Term. The only question that could be considered upon the motion, which resulted in the order appealed from, was whether or not defendant should be relieved of his default in not complying with the terms of the order of August thirteenth, opening the default at Trial Term, and the only order that could properly be made would be one permitting him, with or without terms, to comply with the conditions of the order of August thirteenth. But even such an order would not, under the circumstances, be justified. The defendant has not put himself in a position to ask to be relieved of his default in complying with the conditions imposed by the order of August thirteenth, because he has not evinced a willingness to comply, so far as possible, by paying the costs of the action and tendering such a bond as was required. Furthermore, his dilatory tactics and repeated defaults do not entitle him to consideration. The order appealed from must be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs. Ingraham, Laughlin, Clarke and Houghton, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.