By the Court.

Defendants motion to have the judgment in this case opened, and for leave to answer, was addressed to the discretion of the court below and we see no evidence of its abuse. The facts (as to which there is no disagreement) were such as, in our opinion, to warrant the court in coming to the conclusion that defendant’s default was the result of mingled surprise and excusable neglect.

If Cary had prepared the answer, as he intended to do, in accordance with his telegram to Mitchell, the default would not have occurred; that he did not prepare it, was owing to Ithe fact that he was “ suddenly and unexpectedly called away *158from home.” On the other hand : if Mitchell and his partner had not both been necessarily absent when the complaint and statement of facts constituting the defense were received from Cary in lieu of the expected answer, the default would not have occurred. Mitchell could hardly be supposed to anticipate Cary’s failure to transmit the answer, nor could Cary be supposed to anticipate the absence of both Mitchell and his partner. Defendant appears-to have used due diligence to remedy the failure to serve the answer in time, by serving the same on the next morning.

When the last extension of time to answer was asked for, it appears that plaintiff’s counsel at first declined to grant the same, but that the time to answer was at length extended until Monday forenoon following, with the understanding, that if the answer was not served at that time plaintiff might proceed to take judgment.- Judgment was entered up accordingly. Plaintiff claims that this was a contract to let him take what he styles a valid judgment, meaning as he explains it, a judgment which defendant would not move to vacate. But admitting, for arguments sake, merely, plaintiff’s claim that the circumstances attending the last extension make out a contract, we are of opinion that the contract goes no further than to bind defendant to permit plaintiff to take judgment. This is the language of the supposed contract, and we perceive no reason for giving it any additional meaning beyond its language. Judging, from the ordinary course of business of this kind we presume that defendant’s agreement was in substance as if be had said to plaintiff, “ You have already granted me several extensions, and since you object to a further extension, if you will consent to extend till Monday forenoon next, if I do not answer by that time you may take judgment, and I will not complain or Eysk you to extend further.”

*159This is not an agreement, either in letter or in spirit, that defendant will not apply to the court to have the judgment set aside, and for leave to answer, upon the ground of surprise and excusable neglect.

The objection that the affidavit o'f Cary and the proposed answer do not show that defendant has any defense, is not much urged, and we need say no more than that we think it not well taken.

Order affirmed.