Shaw v. City of New York

The defendant appeals from an order denying its motion to open a default in this action, taken upon the failure of the defendant to *569. answer the complaint. The ground upon which the motion was made is that a clerk employed in the office of the "corporation counsel of the city of Hew York failed to make a proper entry in a diary of the date at which the time to answer expired, and, therefore, the default was the result of inadvertence. The motion was opposed on various grounds, among others, the neglect of the city in moving in time. The action was begun on the 22d of August, 1900, and the júdgment was entered Hovember 20, 1900. The motion to open the default was made upon an order to show cause granted on January 29, 1901. We do not think it can be said, under the circumstances disclosed in the moving papers, that the delay of the city in ajrplying to vacate the judgment and to be permitted to answer constitutes such laches as should deprive it of aright to relief.

A more serious objection urged to the motion is that the city has really no defense to the plaintiff’s claim; but upon an examination of the record before us we think there is a debatable question as to the plaintiff’s clear right to recover upon his demand. He is the assignee of one Flynn of an award for damages for change of grade of real property in the city of Hew York. The award was made while Flynn was the owner of the property and he assigned the claim to the plaintiff in December, 1898, but that assignment was not filed in the office of the comptroller of the city of Hew York until the 27th of July, 1899. There was a mortgage upon Flynn’s property which was foreclosed and a deficiency judgment was entered against him, which deficiency judgment was purchased by one Margaret A. Kiernan, who claimed the award as belonging to her, and she on the 25th of July, 1899, filed a notice of her claim, with the comptroller and demanded payment of the award. On the 18th of October, 1899, she filed an amended claim, and December 19, 1899, the plaintiff filed a demand for the payment of the award by virtue of the assignment to him. On- the 2d of April, 1900, one Catherine A. Kelly, as assignee of Kiernan, filed with the comptroller a writing in which she protested against the payment of the award to Flynn or to any other person claiming to be the assignee of Flynn, and she sued the city for the amount of the award, making Shaw, the plaintiff here, a party. An answer was put in by the city to that ' *570action’ which is now pending. In August, 1900, the plaintiff began this action, in which the defendant desires to set up' the rival claims of Catherine Kelly and the plaintiff, and that it is unable to determine to whom ,the award should be made and cannot with safety pay it to either of the parties, and it professes its willingness to pay the amount of the award into court upon being relieved, of liability to the plaintiff and Catherine Kelly.

We do not think it proper at this stage of the action to pass upon the question of the plaintiff’s right to the award as, founded upon the contention that such award belonged to- the owner of -the property at the time it was made and is to be regarded as personal property. The Kelly claim is not a frivolous one, and the merits of the .controversy cannot be determined upon this‘motion.

We are of opinion, therefore, that the order should be reversed and the motion granted upon the payment of the taxed costs included in the judgment. . Xo costs upon this appeal.

Present—Van Brunt, P. J., Rumsey, Patterson and McLaughlin, JJ.

Order reversed and motion granted upon payment of taxed costs included in the judgment. Xo costs upon this appeal.