(78 Hun, 599.)

#### KEATING v. HAYES.

(Supreme Court, General Term, Fifth Department.

June 20, 1894.)

Opening Default—Vacating Order—Fictitious Affidavit.

Where an order opening a default, and allowing defendant to answer, is-based on a fictitious affidavit, filed by defendant, the order will be vacated; and the answer stricken out.

Appeal from special term, Monroe county.

Action by Annie M. Keating against William B. Hayes. From an order which vacated and set aside an order opening defendant’s default, and permitting defendant to serve an answer, and which struck out the answer defendant had served by virtue of said order,, defendant appeals.

Affirmed.

Argued before DWIGHT, P. J., and HAIGHT, BRADLEY, and LEWIS, JJ.

Eugene Van Voorhis, for appellant.

Joseph W. Taylor, for respondent.

LEWIS, J.

The plaintiff, as the owner and holder of a promissory note made by the defendant, dated October 27, 1887, payable to the order of the plaintiff, for the sum of $2,000, brought an action thereon against the defendant, by the service upon him of a summons and complaint. Defendant made default, and judgment was entered in favor of the plaintiff, and against him, for the amount of the note. Thereafter the defendant made a motion to vacate and set aside the judgment, upon the ground that the summons- and complaint were never in fact served upon him, but were served upon his brother, Joseph J. Hayes. The motion was denied; and he then made a motion for an order opening the default, and per*476mitting him to answer, which motion was granted. The order, however, provided that the judgment might stand as security. The latter motion was founded upon what purported to be the affidavits of the defendant and his brother, Joseph J. Hayes, purporting to be verified on the 15th of April, 1891. before a notary publifi in and for the county of New York. The defendant thereupon served his verified answer, denying, all of the allegations of the complaint. The defendant was thereafter indicted, tried, and convicted in the city of New York of the crime of perjury in verifying the said affidavit, and was sentenced to imprisonment in state prison for the term of eight years, and is now serving such sentence.1 After the trial and conviction of the defendant, plaintiff made a motion to vacate and set aside the order aforesaid, opening the default of the defendant, and allowing him to serve his answer. It was made to appear to the court by the affidavits read upon said motion, and by an inspection and comparison of signatures presented to the court, that the said order opening the defendant’s default was procured by the defendant’s practicing fraud and deception upon the court, in the use upon the motion of papers purporting to be • affidavits made by the defendant and his brother, which had not in fact been verified. It was also made to appear that, a paper which purported to be the affidavit of Joseph J. Hayes, and used upon said motion by the defendant, was never in fact signed or verified by him. These fictitious papers formed the basis of the order opening the default. These facts being made to appear to the satisfaction of the court, the order appealed from was granted, vacating and setting aside the order opening said default, and striking out the answer, and directing that the judgment stand as the final judgment in this action, and that the same be enforced in the usual manner. It would certainly have been a travesty upon the administration of law to have permitted the defendant to retain and enjoy the benefits of an order which he obtained by practicing upon the court fraud and imposition. The order appealed from should be affirmed, with $10 costs and disbursements of the appeal. All concur.

1

 See People v. Hayes, 24 N. Y. Supp. 194, affirmed by 35 N. E. 951. '