Cohen v. Gorman

FREEDMAN, J. This is an appeal from an order denying a motion made by Callman, Rouse, and Samuel Barnett, sureties on an indemnity bond given to the defendant as sheriff, to set aside-a judgment taken against defendant by default, and to substitute the appellants as defendants, and to permit them to come in and defend. The action was commenced in October, 1891, and resulted in a judgment against the defendant in June, 1892. The judgment was paid by the defendant and satisfied by the plaintiff of record before the appellants gave notice of motion to be substituted. In view of these facts, and there being no proof 461 of collusion, and no disclosure of the nature of the proposed defense, the motion was properly denied. Jakobi v. Gorman, (Com. Pl. N. Y.) 21 N. Y. Supp. 762, is clearly distinguishable. The order should be affirmed, with $10 costs and disbursements.