Redfield v. Critchley , 300 N.Y.S. 305 ( 1937 )

O’Malley, J.

(dissenting). The court always has had inherent power in the interest of justice to vacate a judgment. (Ladd v. Stevenson, 112 N. Y. 325.) Sections 108 and 528 of the Civil Practice Act, therefore, were intended to place a limit upon the time within which a default judgment should be vacated. (Schlimmer v. New York, Ontario & Western R. R. Co., 212 App. Div. 782.)

Here, there are no intervening or other equities, such as were found in Ladd v. Stevenson (supra). The protection of sections 108 and 528 of the Civil Practice Act, therefore, should be afforded the parties obtaining the default judgment and the inherent power of the court should not be invoked against them. (Gysin v. Gysin, 263 N. Y. 509.) Whether there was power in the court, as distinguished from exercise of discretion, to open the default judgment may properly be presented to the Court of Appeals by appeal from the final judgment. (Civ. Prac. Act, §§ 562-580.)

I, therefore, dissent and vote for reversal of the judgment in favor of the defendant Louise Cowperthwait Lawrence and for reinstatement of the default judgment against her entered November 12, 1928, in accordance with my dissent from the order of this court vacating said default judgment. (243 App. Div. 70.)

Judgment affirmed, without costs.