New-York daily tribune., 1859-07-08
COURT ov COMMON PLEAs-G.,rHAL re,~-JrLy :


Before Jldses DAILY, BRADY and HILroN.
Timothy N ,G1,n .as;. Albert 5. Case st al
Day, =. il did 20, fully understand tins case
eao3g :he aiayits pow Dd thar there is sufficient in ne
.oidae. Of N,G n % psSIi tne ssa9n .aa' o. os & e
bin, which sS5is for which he received eei.se' 70!
ha b. hd es@a o7sPst an BIS pIo. - g over % tiooo
which De uttered that he disps@ Of the
eo $500 OF he amount hey represented Thst 10 he
sale OF 20 the De sndan he dhoEs concealed the acts
vbi.h fsso,4a uouli have enabled the defendants
b,. what ,h.y were puhadg improperly obtained by
M,Gmn The Corplrsnn Of Hoosen. There msy b" some
Gif;y in tns up defense uncs. the Hobolen
Copson aye made parties bat quite sree Judge Hi
;ha; ha eeerdal risas should not b. summary disposed
Ssy. sbw dhonest attempt On The part McGun and
bis assignee alleged have snowedse ;he ts toos
asge ga. 0. money which ,bey suow they have no cSin
Same az. same.
made Special re denying their motion Tor leave 70 serve an
/, spr. that before the time ior answering the cmPanteS
irgd the defendants lpon proper affidavit obtained iom
of Judges this Count order extending The time 10 answer
RI. order dy served March a. 1885, the day Of It.
S,;s RH b ,sG S p15 ,5,S %b .ned + Tss S @
dsegsdsd Code 'e i5 and notice OF taxation was
given lie pliuid cl- evidently Poprs'ory TO entering
Three day. ser he order thus eryel he defndant'
opy Of he affidavit, bl, subsequently ~lrins the plain
ia would disregard the orde. and en'sr asmet hey peeu
for thus treating he case as one where
The adayit presented upon .he motion show tlt the plain
s as a,gpee Of QUE McCun from the dsiend
who brokeri the balance due upon the sac 3 M
un .o them Of certain improvement certificates u the Cy u
Hooosen which issued by that city 20 Mc'un, under
mistake and received by him with full tnocdse mat he
vas IL NJ way entitled them 10 state the facts with moro
di..n McGIin hai done certain work for the city or
which ne bad been psid account from tine TO time a. the
WORK progressed; when II finished he presened state
men, OF whole work done for which b. WIS raid by the
offers Of the city he f contract price, tey ot,ng by ms
take 20 dedrc, The ,hs previously paid on account
Some months after, discovering the mistake they spped
rim IN. Ht
received He then made claim that he entitled 20 them
and promised o. srranss the matter Ihs ne ne % ot
the contrary thereafter transferred 20 the p1ntih the baance
remaining from she sale the certificates 20 ne deendss
The Ciy Hobken has given notice b the dendan tnat
they will pay the certificates thus ooaned and nte nss
Gates issued through mistake spd without CONSIDERATION
they would be pid and csuiion5 the public against nso
l. Is 5,g,d .hs. The plaintiff the time be accepted the
assignment Of The claim TOR which this action brought had
full know ledge of all these facts
Urou .hese circuTstances which, Il proved the trial
would sufficient constitute valid deiehse u TINS a
being shown by hdayis think The Judge at special Tern
erred IN refn defendants leave TO answer thus IN effect
determining the action, and preventing udgmsu iom whch
appeal n sh b. taken. Code sec ols sub - - IL,
This where party asking 70 nave JUG
et that he be let in defend the merits the
determination which aPpcstion might rest In some degree
the discretion Of the Judge, and therefore might o n roe
on appeal without eree under the rule ~ March l2 1857
but be ordinary of party committing an iresary
in the service Of and against which, he was entitled 70 be
the ccumssuces Quick agt Merrill, 5Can'', IS beudr
IL has ops been the settled practice Of ct aside
the default be defendant swearing merits and paving coss
Dayenpr, Ferris y. John, Bl Talmad4e ast sacsholm,
Court far hold that upon motion tn opena default,
he ordinary affidavit Of merits cod not be con,radicted Here
additional circmsauces shown which, IT lncortredced
clearly make substantial drens The order appealed from
should BE- reversed and permission is given 10 The defendants -
upon the paymsn, TO the p,n'a Of 90 costs o the
motion a. Special Term.