Tomoser v. Hegyi , 147 N.Y.S.2d 241 ( 1955 )

Second ordering paragraph of the order affirmed, and the first ordering paragraph reversed and the motion denied, without costs of these appeals to any party. Memorandum: The order appealed from grants defendant’s motion to strike out that portion of a default judgment which awards money damages against him, but denies his motion to open his default in pleading. We think that the Special Term correctly exercised its discretion in refusing to open the default. It was not a case of “mistake, inadvertence, surprise or excusable neglect” (Civ. Prac. Act, § 108), but a case of deliberate default (Prager v. Beardsley, 133 App. Div. 592, 595). Defendant knew that he was a party defendant in the action, and that the case was being tried. He attended the trial as a spectator. In failing to move for relief until ten months after he learned of the personal judgment against him, and after an appeal by other parties had been decided, defendant was also guilty of gross laches (Wischerth v. Wischerth, 266 App. Div. 881). Defendant’s default not having been opened, it was error for the Special Term to strike out any portion of the judgment against him. Such judgment was not void for lack of jurisdiction or otherwise, and was valid until reversed on appeal. This court has stated that “where the court has jurisdiction, its judgment cannot be attacked for error by motion. An appeal is the appropriate remedy.” (Matter of Whitney v. Chesbro, 244 App. Div. 594; see, also, Klein v. Fairberg, 243 App. Div. 609, and Boslov v. Boslov, 177 Misc. 817, affd. 264 App. Div. 943.) All concur. (Cross appeals from an order of Erie Special Term granting part of a motion to vacate part of a judgment, and denying defendant’s motion to open his default in pleading.) Present — McCurn, P. J., Kimball, Wheeler, Van Duser and Williams, JJ. [See post, p. 931.]