On appeal from the Supreme Court.
For the appellants, Charles Halsted.
For the respondent, Adolph Schlesinger (L. Stanley Ford, of counsel).
The opinion of the court was delivered by
HEHER, J. Defendants appeal from a "default" judgment of the Supreme Court in favor of plaintiff entered on April 18th, 1946, for $2,523.27 and costs, on an assessment of damages by the clerk, and also from a rule made by a Circuit Court Judge, sitting as a Supreme Court Commissioner, on the ensuing January 10th, discharging on the merits defendants' rule to show cause why the judgment should not be opened as improvidently entered and the defendants allowed to defend the action.
The proceeding to open the judgment entertained by the Supreme Court Commissioner is coram non judice. Rule 94
of the Supreme Court, as amended on May 15th, 1943, empowers the Circuit Court Judges, acting as commissioners of the court, to make such order as the court might make in respect of, inter alia, the "opening of default judgments." But the rule (assuming its efficacy) plainly has reference to judgments entered in default of a pleading or, perhaps, appearance at the trial after issue joined. And there was no such default here. Indeed, respondent now suggests that the judgment was entered "by consent" rather than "by default." Yet, for reasons to be presently mentioned, it was not that; and, even though it was, the clerk of the Supreme Court was not empowered to assess the damages.
Plaintiff, as the assignee of a co-partnership trading as Pine Brook Iron Works, seeks recovery of the price of fabricated steel beams and columns sold to defendants by plaintiff's assignor. Defendants answered admitting the making of the contract, but denying delivery of the subject-matter of the complaint and all liability for the price of undelivered steel. Upon the cause coming on for trial on January 7th, 1946, the parties entered into two separate stipulations:
Stipulation "A" recited an indebtedness of defendants to plaintiff in the sum of $2,900, including interest and costs, and embodied an agreement by the defendant Halsted to deliver "a series of notes totaling $2,600 and $300 in cash on or before March 7th, 1946," each note to be in the sum of $260, the first to mature on April 8th, 1946, and one to mature "thereafter on the 8th day of each and every month until the full amount of $2,600 and interest shall have been paid," subject to acceleration in the event of default "in any one payment," and that "in the event of a default, judgment may be entered" in the cause by plaintiff's attorney "for the full balance due;"
Stipulation "B" declared an indebtedness by defendants to plaintiff in the sum of $4,297.77, and contained an agreement that "the defendants will be entitled to a credit of $1,671.47 in the event that the steel is not delivered;" that "In the event that the defendants elect to have delivery of the steel, the full amount of $4,297.77 shall become due, with interest from January 1st, 1945;" and that "the defendants shall have
sixty days' time in which to make the election for the delivery of the steel hereinabove mentioned, at the end of which time the plaintiff may proceed to judgment for the amount of $4,297.77 if the steel is delivered, and $2,626.30, plus ...