Greenwell v. Caro

WOOD (Fred B.), J.

This is an appeal from an order vacating the default of defendants Samuel Caro and Jacob Caro and setting aside the default judgment that had been entered against them.

Plaintiff’s decedent, Mary Cohn, brought this action for damages sustained as she was leaving a certain hotel, allegedly due to an abrupt step or dropoff from the level of the lobby and doorway to the floor of the entranceway. It appears that defendants Samuel and Jacob Caro, own the hotel building, which is operated by a tenant.

Summons and complaint were served upon these defendants August 24, 1951. Their default was entered October 2. Default judgment against them for $29,715 and costs was filed and recorded October 5. November 9 by minute order and November 15, 1951, by written order, the trial court, upon motion of the defendants, set aside the default and the default judgment, permitting their answer (which had been filed October 19 with a notice of motion to vacate and affidavits in support of the motion) to stand as defendants’ answer in the case, and ordering that the defendants pay all reasonable expenses of the plaintiff as may be taxed against the defendants.

Plaintiff claims that the trial court acted without evidence, upon the theory that the two affidavits upon which the defendants principally relied (other than the affidavit of merits and the verified answer) were not properly before the court. One of these affidavits, that of defendant Jacob Caro, was mailed to the trial judge after the hearing and submission of the motion to vacate, and plaintiff, by letter to the judge, promptly objected to its consideration and moved it be stricken from the files. There is nothing in the record to indicate whether or not the trial judge considered this affidavit. For the purpose of this appeal, we may assume that he did not consider it, just as if it had not be filed. Its statements were merely cumulative of those which appeared in the other affidavit and in the verified answer.

The other affidavit was that of Joseph I. Taylor, Jr., filed with the notice of motion to vacate, hence timely filed. At the hearing plaintiff objected to its reception in evidence

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upon the ground that “it is incompetent, irrelevant and immaterial, there is no proper foundation for its receipt, that his statements are hearsay; and on the further ground that there is no showing that Taylor is the agent or legal representative of Samuel and Jacob Caro within the meaning of Section 473 CCP.” Section 473 of the Code of Civil Procedure declares that the court may relieve a “party or his legal representative” from a judgment or order or other proceeding taken against him “through his mistake, inadvertence, surprise, or excusable neglect.” Plaintiff claims that Taylor’s neglect or mistake was not that of the defendants nor that of their “legal representative” even if defendants did deliver their copies of the summons and complaint to their insurance carrier for attention, the carrier assigned the matter to one of its adjusters, Taylor, for investigation, and Taylor during his execution of that assignment committed the neglect which resulted in defendants’ default. The Supreme Court answered that contention in the negative when in