Citation Numbers: 157 N.Y.S. 314
Judges: Weeks
Filed Date: 2/15/1916
Status: Precedential
Modified Date: 10/17/2022
The defendant herein appeals from two orders of the City Court, one denying his motion to restore this action to the trial calendar, and one denying a motion to vacate an ex parte order making the judgment herein absolute and for substantially the same relief
The material history of the case is as follows:
The plaintiff obtained a judgment against the defendant by default, lie thereupon taxed his costs and disbursements in the sum of $77.92 and entered judgment for $1,677.34 damages and costs. Notice of relaxation was given, but was not opposed. Subsequently the defendant moved to open his default, which motion was granted, upon “condition that defendant, within five days after service of a copy of this order with notice of entry thereof, pay to the attorney for the plaintiff all taxable costs to date, besides $10 costs of this motion, the judgment to stand as security.” The defendant appealed from this order to this court, and by order obtained an extension of time in which to pay the costs until the determination of the appeal. The defendant never perfected the appeal, but between the time of filing the notice of appeal and the time when the appeal should have been perfected it seems some conversations were had and letters written between the attorneys, looking to opening the default upon payment of less than the full amount of costs included in the judgment, and on. October 8, 1915, one of the defendant’s attorneys wrote the plaintiff’s attorney as follows:
“I am inclosing to the order of your client, Alberto Bimboni, my personal check in the sum of $80 as a, condition of opening a default in answering the action above entitled upon the day calendar.” (The italics are mine.)
The check for $80 was inclosed in this letter. On October 11th the plaintiff’s attorney wrote defendant’s attorney a letter, the material portion being as follows:
“I am accepting said check, however, only in part payment of the amount duo, which amount, according to the terms of the order, is ‘all taxable costs to date, besides $10 costs of this motion.’ I further desire to call your attention to the fact that the costs were taxed to the amount of $77.92, which, with the $10 costs of the motion to open the default, makes a total of $87.92."
Upon receipt of this letter the defendant’s attorney immediately wrote again to plaintiff’s attorney, in which letter he said, referring to the check:
“And if you do not receive it as payment for the privilege of opening the default in question you will forthwith return the check.”
No reply was received to this letter, and plaintiff indorsed the check by his attorney, and the check was paid upon presentation. The appeal from the order opening the default was dismissed, substantially upon consent, and the defendant, as before stated, moved to restore the case to the trial calendar. Upon the hearings of the motions the plaintiff successfully claimed that the defendant had not complied with the conditions upon which the order opening the default was granted, and the decision in the lower court resulted in the orders appealed from.
[ 1 ] I am of the opinion that the motions should have been granted. Of course, it could not be said that the defendant fully complied with the terms of the order opening the default. The check for $80 sent plaintiff, however, was coupled with a statement that it was given
“When a party with full knowledge, or with sufficient notice of his rights and of all the material facts, freely does what amounts to a recognition or adoption of a contract or transaction as existing, * * * he acquiesces in and assents to it, and is equitably estopped from impeaching it.” Bothchild v. Title Guarantee & Trust Go., 204 N. Y. 458, 97 N. E. 879, 41 L. B. A. (N. S.) 740.
Motion to dismiss the appeal denied, orders reversed, with $10 costs and disbursements, and the motion to restore the case to the calendar granted. All concur.