Booraem v. Gibbons , 34 N.Y.S.2d 198 ( 1942 )

Per Curiam.

The default judgment entered against defendants in June, 1932, should not have been vacated. Defendants’ excuse for the ten years’ delay in moving to vacate is that the attorney who appeared for them, and who has since died, did not advise them of the default judgment. Even assuming this to be so, we think that in the exercise of ordinary care and diligence defendants could have ascertained all the necessary facts concerning the outcome of their litigation with plaintiff. It is quite clear that defendants, who suffered numerous other default judgments, were spurred to act in this case only when plaintiff’s vigilance uncovered available assets- for the payment of his judgment.

Where the judgment is the result not of a default, but of an abandonment, the judgment should not be vacated or set aside. (Demuth v. Kemp, 144 App. Div. 287, 289.) Parties seeking to be relieved from their defaults must show a reasonable excuse for their neglect. (Clews v. Peper, 112 App. Div. 430.) Upon the papers submitted defendants have failed satisfactorily to account for their neglect.

The order entered October 18, 1941, and the order entered January 22, 1942, so far as appealed from, should be reversed, with ten dollars costs and disbursements, and the motion to open the default and vacate the judgment and the order in supplementary proceedings, and for other relief, should in all respects be denied. The order entered January 29, 1942, granting the judgment debtors’ motion to vacate orders for the examination of the judgment debtors and of a third party should be reversed, with ten dollars costs and disbursements, and the motion in all respects denied.

Martin, P. J., Townley, Glennon and Cohn, JJ., concur; Dore, J., dissents and votes to affirm.