Hornthal v. Finelite

Fitzsimons, J. This is an appeal from an order opening defendant’s default and failure to appear and answer upon the ground that the terms imposed by said order work a hardship upon him. The order required him “ to give an undertaking to secure any judgment that might be obtained herein.” This older must be sustained unless it appears that the Special Term justice acted unfairly, arbitrarily, or otherwise improperly exercised or abused the discretion he had a right to exercise. We have carefully examined the appeal record, and find that after the defendant made the note upon which this action is based, he transferred his property to his wife and other members of his family, evidently for the purpose of preventing his future judgment creditors from levying upon the same ; besides he swore that he ivas not served with the summons and complaint herein, when no doubt he was served; besides, his proposed defense (insanity at the time he signed the note in suit) is rather, in our judgment, of doubtful merit; under these circumstances the Special Term justice was not only right in making the order in question, but it was his duty to do so; in fact, he should have denied defendant’s application [725] to defend this action, and if such an order had been made we should have sustained it. The order appealed from should be affirmed, with costs. Newburger and Conlan, JJ., concur. Order affirmed, with costs.