On rule to show cause, &c.
For the plaintiff, Slingland, Houman & Bernstein (Maurice Bernstein, of counsel).
For the defendant Benjamin C. Smith, Quinn & Doremus (John J. Quinn, of counsel).
Before Justices Trenchard, Case and Heher.
The opinion of the court was delivered by
TRENCHARD, J. This is the return of a rule to show cause obtained for the purpose of setting aside a judgment taken by default by the plaintiff herein, which judgment was taken after counsel for the defendant Smith had filed his answer to the amended complaint four days out of time.
It appears from the depositions that the defense of Benjamin C. Smith, a co-defendant in this suit (hereinafter called defendant) was being personally handled by Thomas P. Doremus, a member of the firm of Quinn & Doremus. Originally a complaint issued and was duly served upon Smith, and after demands for various bills of particulars, together with various other motions, such as motions to inspect books and documents, an amended complaint was forwarded by mail to defendant's attorneys on the 14th day of October, 1938, together with a letter requesting that service be acknowledged by Smith's attorney. Service of same was not acknowledged until December 13th, 1938.
The answer to the amended complaint was due on or before January 3d, 1939. The answer was actually sent to the plaintiff's attorney by mail on January 7th, 1939, four days late. The plaintiff's attorneys refused to consent to the filing of such answer as of time and returned the answer on February
17th, 1939, without informing Smith's attorney that prior thereto, on February 10th, they had entered a judgment by default.
The reason for the delay in answering the amended complaint was the carelessness and neglect of Mr. Doremus, Smith's attorney, and it is Smith's contention that he has a meritorious defense to this action and should be permitted of file an answering pleading, and for that purpose the default judgment should be vacated and set aside.
Now R.S. 2:27-115 declares: "If, in any action, judgment shall pass against either party by reason of the failure of the attorney of such party to file proper pleading, the court or a judge shall, on application within one year after the entry of such judgment, open such judgment and permit a proper pleading to be filed upon terms, if, in the opinion of the court or judge, injury or wrong has resulted or may result from such failure."
We believe that the facts in the present case bring it squarely within that statute and within the line of cases under the statute which permit the opening of the judgment entered ...