Meyer v. Mallon ( 1895 )

CULLEN, J.

This is an appeal from an order of the special term

denying the application of the defendant Mallon to set aside a judgment of foreclosure and sale; and permit the defendant to answer. We think the application was properly denied, on the ground of the gross laches of the appellant. The judgment sought to be vacated was rendered on the 9th day of June, 1877. This application was not made until October, 1894, after a lapse of over 17 years. The judgment roll contains an affidavit of personal service of the summons and complaint upon the appellant, made by the plaintiff’s attorney, who has since deceased. This positive oath should outweigh the statement in appellant’s affidavit, which is simply to the effect that, to the very best of her recollection,° there were not any summons and complaint served upon her. The judgment was therefore regular, and now, after it has stood for this long period, and the sale made under it unchallenged, should not be opened.

The order appealed from should be affirmed, with $10 costs and disbursements.