SUPREME COURT.

#### The Security Bank of the City of New York, respondent, agt. The National Bank of the Commonwealth, appellant.

*General Term, First Department,*

*October,*1874.

*Judgment by default set aside—leave to answer given*— *appealable order.*

Where a receiver was appointed under the national bank currency act of the assets of an insolvent national bank — the defendant, and an action thereafter commenced against the defendant by service of summons upon the president, who for some reason or other refused to inform the receiver of the commencement of the action and a judgment was recovered by default :

Subsequently, at the instance of the receiver, an order was procured for the plaintiff to show cause why the judgment should not be set aside and the defendant have leave to answer the complaint—which motion was heard and denied, with leave to renew, and subsequently was finally denied: Prom this order an appeal was taken to the general term, which was strenuously resisted on the ground among others, that the order being one of a discretionary nature, was not appealable:

*Beld,*that it did not follow, because the order was discretionary, that it was not appealable; for the Code renders all orders appealable to the general term which either affect a substantial right; or are made in summary applications after judgment, and affect a substantial right. This right is not qualified by the fact that the order shall not be one of a discretionary character.

Appeal from order denying motion to set. aside judgment recovered "by default, and for leave to answer.

*H. Edwin Tremain,*for appellant.

*Wm. H. Arnoux,*for respondent.

*136Daniels, J.

A receiver was appointed under the national currency act ( *Vol.*13, *U. S. Statutes at*Large, 115), of the books, assets and records of the defendant, as an insolvent national banking association, in September, 1873; and he entered upon the discharge of his duties in that capacity. After that, and on the 4th of March, 1874, the summons in this action was served upon George Ellis, the defendant’s president, and he, to use his own language concerning his singular and extraordinary conduct following the service, supposing- that his connection with the bank ceased by the appointment of the receiver, “ took no notice of any papers that were served upon him as an officer thereof, and did not do so in regard to the summons herqin, nor did he inform said receiver of said service.” This is the sworn statement of the defendant’s president, and it so completely describes his utter want of moral, as well as official sense of accountability, as to dispense with all further attempts at characterizing his conduct.

The consequence of this inexcusable neglect to inform the receiver of the service of the summons was, that on the 17th of .April, 1874, a judgment was entered in favor of the plaintiff and against the defendant, for nearly $57,000; and the receiver swears that his first knowledge of its recovery, or of the commencement of the suit, was- on or about the 21st day of April, 1874, when a transcript of the judgment was presented to him by the plaintiff’s attorneys.

On the 11th of May, 1874, an order was procured at the instance of the receiver and some of the defendant’s directors— who were actuated by a different sense of duty from that which impressed its delinquent president — for the plaintiff to show cause why the judgment should not be set aside and the defendant have leave to answer the complaint; and on the twenty-sixth of that month'the motion was heard and denied, with liberty to renew it on further affidavits. It was renewed again, on additional affidavits, on the 16th of June, ’ 1874, and then finally denied. The present appeal is from *137the order then made; and it is resisted strenuously on the ground, among other reasons, that the order is not appeal-able. The particular reason assigned in support of that objection is that the order was one of a discretionary nature; and that it most certainly was. But it does not follow from that circumstance that the order is not appealable; for the Code renders all orders appealable to the general term which either affect a substantial right, or are made in summary applications after judgment, and affect a substantial right *(Code,*§ 349, *subs.*3, 5). This right is not qualified by the fact that the order shall not be one of a discretionary character. bio such qualification has been attached to the right of appeal taken to the general term. In this respect the appeal differs from that which may be taken to the court of appeals; for when an appeal is taken from an order affecting a substantial right, to that court, the order to be appealable there, must be one which does not involve any question of discretion *(Code,*§ 11, *sub.*4). The distinction existing between the two courts in this respect is clear and decided; and the law making it provides for an appeal to the general term from an order affecting a substantial right, even though it may be of a discretionary character *(People*agt. *N. Y. Central Railroad Co.,*29 *N. Y.,*418 ; *Matter of Duff,*41 *How.,*350; *Livermore*agt. *Bainbridge,*47 *How.,*254).

This term, substantial, had no special legal signification when it was incorporated by the legislature into the Code for the purpose of describing the cases in which appeals from orders could be taken to the general term. For that reason it must be construed according to its popular and usual signification ; and, understood in that manner, it includes all positive, material and absolute rights, as distinguishable from those of a merely formal or unessential nature. An obligation imposed upon a party by an order subjecting him to the payment of a sum of money, great or small, has been held to fall within this designation of an order affecting a substantial right, and, therefore, appealable to the general term, even *138though discretionary *(People*agt. N. *Y. Central*Railroad, 29 N. *Y.,*421, 422).

That was the nature of the judgment recovered in the present action; and the order appealed from, by the denial of a defense, imposes upon the defendant an actual, positive obligation for its payment. As long as that order remains in force the obligation to .pay is unqualified and irrevocable. Besides that, the right to defend against a demand made in a court of justice by way of action, is of a positive and substantial nature. It is one which has been secured with care and consideration in the administration of the law; so much so, that judgments recovered without affording an opportunity for defense have, with great uniformity, been held ineffectual and void wherever the principles of the common law have prevailed and the general course of practice has been maintained so as to secure the observance of that right in favor of parties who have not forfeited it by laches, or some other course of conduct rendering it inequitable, under the circumstances, to afford relief. This power has been conferred upon the court in which the action may be pending, and not upon any exclusive term or branch of the tribunal:

It is true that the right of appeal from orders involving its exercise has often been denied on the mere ground that the order made was discretionary in its character; but as that reason is very clearly untenable, and has been so declared by authorities controlling the action of this court, it is not necessary to refer more particularly, to the cases in which "that" denial has been sustained. It is sufficient to say that under the exposition now given to the statute, and which is sustained by its terms and the authorities already cited, all orders affecting a substantial right are appealable to the gen-, eral term; and the order appealed from in this case is one of that character.

The power, as already mentioned, has been conferred upon the court in which an action may be pending, upon such terms as may be just, at any time within one year after *139notice thereof, to relieve a party from a judgment, order, or other proceeding taken against him, through his mistake, inadvertence, surprise or excusable neglect *(Code,*§ 174). The power, it will be seen from this reference, has been supplied, in very general terms, but the circumstances rendering its exercise discreet and proper are not mentioned. They are, therefore, by another provision, left to be ascertained according to the preceding course and rules of practice (Code, § 469). And by them a party was always relieved from an excusable default, where he appeared to have merits in his favor and the application was made promptly after the discovery of the default.

For the purpose of showing merits, a sure and certain defense was never required. What was necessary for that purpose was a probable defense to the claim made, alleged by the party in good faith; and the usual evidence required of its existence was an affidavit of merits, which, under ordinary circumstances, was not allowed to be controverted, because of the danger of injustice resulting from such a mode of trial. In *Hanford*agt. *McNair*(2 *Wend.,*286) affidavits were produced denying that the defendant had a defense; and, by way of answer to them, Savage, C. J., replied, that *“*The court does not hear affidavits in opposition to an affidavit of merits.” That, as a general proposition, still continues to be the law; but, in cases where the good faith of the party may well be doubted, they may be received for the purpose of confirming the propriety of that doubt; and in such cases the court may go further, and require a disclosure of the case, so far as to enable it to determine whether the application be made in good faith, and not for the simple purpose of delay. That is the common practice, and it is sanctioned by a moderate exercise of the discretion conferred upon the court.

But, still, where the application for relief from the default is promptly made, and no reason exists for suspecting the ' good faith of the applicant, it should uniformly be allowed *140to prevail. This was the course pursued when the rules of practice were applied with greater strictness than has been observed since the enactment of the Code of Procedure. In *Davenport*agt. *Ferris*(6 *John.,*131) the motion to open the default was made before the court in banco, and Thompson, •J., declared himself in favor of setting “ aside a default whenever the party swears to a defense on the merits, and no opportunity for a trial has been lost.” Van Hess, J., concurred, for the same reason, and Kent, C. J., assented, without giving any reason. A similar motion was made in term time in *Tallmadge*agt. *Stockholm*(14 *John.,*342), where it was held that the court had adopted the general rule “ that a default for want of a plea, though regularly entered, will be set aside, in every ease, on the payment of costs, where there is an affidavit of merits and no trial has been lost.” And the same rule was again declared by the court in *Packard*agt. *Hill*(4 *Cowen,*65).

Under this rule the defendant was entitled to be relieved from the judgment recovered through the intentional misconduct of its presiding officer, and allowed to answer; for the application was made with reasonable diligence, after the discovery by the receiver of the default, to whose protection the law had confided the interests of the defendant and its creditors. The default was excused by showing the intentional concealment of the service of the summons, and the probability that the judgment had been recovered by the connivance and desire of the officer on whom the service was made. The application was also supported by a proper affidavit of merits; an affidavit of the bookkeeper that $50,000 of the plaintiff’s demand was not credited upon the defendant’s books, and the affidavits of ten of the defendant’s directors that they had no knowledge or information of the existence of such a loan, and some evidence that it consisted of money borrowed for his own personal uses by the person on whom the summons in this action was served.

Although the affidavits and proofs of the plaintiff used on *141the motion tended to show that the loan was.made to its president for the defendant, the case still indicated that the liability was contested in good faith, and with a probability, at least, that the receiver and the directors co-operating with him might in the end prove to be successful in the defense of the action. And that probability was in no slight degree sustained by the misconduct of the defendant’s president, for it afforded good ground to suspect that he concealed the service of the summons from the other officers of the defendant and from the receiver then in charge of its books, records and assets, for the purpose of charging such assets with the payment of a debt owed solely by himself.

The bank continued to exist, notwithstanding the appointment of the receiver. The suit was, therefore, properly instituted against it, and the defense should, accordingly, be made by it *(Bank of Bethel*agt. *Pahquogue Bank,*14 *Wal.,*383).

The order appealed from should be reversed, with ten dollars costs, and disbursements on the appeal, to the defendant and appellant; and an order should be entered setting aside the judgment, and allowing the defendant within ten days after notice of the order, to serve an answer to the complaint, on payment, within that time, of ten dollars, costs of opposing the motion and the disbursements made on the entry of the judgment.

Davis, P. J., and Lawrence, J., concurred.