Arnke v. Lazzari Fuel Co.

SULLIVAN, J.

Plaintiff appeals from an order vacating and setting aside a default and a default judgment.

Plaintiff’s complaint, filed July 11, 1960, seeks recovery for money allegedly due on an oral construction contract. Summons was served on the defendant on July 18, 1960. Thereafter, the defendant received a number of extensions of time to answer the complaint, while the parties undertook negotiations for the settlement of the action. On February 9, 1961, the defendant’s default was taken and judgment by default entered in favor of the plaintiff. On May 5, 1961, the defendant served and filed its notice of motion to vacate the default and set aside the default judgment. The motion was granted and the order herein appealed from entered on May 23,1961.

The supporting affidavit of defendant’s counsel, Mr. Klein, filed with the notice of motion to vacate stated: that the attorney for the plaintiff and the attorney for the defendant had conferences regarding the plaintiff’s claims; “that by reason of the negotiations regarding the conflicting claims of the parties, the answer . . . was delayed”; that defendant’s failure to answer was not wilful and “was occasioned by the circumstances surrounding this claim; that in addition thereto, your affiant has been ill and under the care of a physician.”

The counteraffidavit of plaintiff’s counsel, Mr. Dougherty, stated: that following the filing of the complaint, the parties, through their attorneys, began negotiations for settlement;

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that in a letter to defendant’s counsel dated November 16, 1960, Mr. Dougherty, after giving the plaintiff’s position on certain matters then under discussion, stated: “Let us know what comments Mr. Lazzari has to make, and in the event that it does not appear that we can settle this matter, please get your answer on file . . .”; that on December 8, 1960, Mr. Dougherty again wrote to Mr. Klein giving the position of his client on a certain matter under discussion and stating that a settlement did not appear probable and “we would appreciate your getting your answer on file”; that on December 12, 1960, Mr. Klein replied by letter that he would take up the matter with his client and advise plaintiff’s counsel; that on January 9,1961, Mr. Dougherty again wrote requesting that an answer be filed, to which Mr. Klein replied under date of January 10, 1961, that he had been away from his office, but that he would communicate with his client, and advise Mr. Dougherty during that week; that on January 27, 1961, Mr. Dougherty again wrote Mr. Klein advising that “ [u]nless an appearance is made on behalf of your client by Tuesday, February 7, 1961, we shall be compelled to take a default judgment”; that a default was taken on February 9, 1961, and judgment entered the same day; that on February 24, 1961, Mr. Klein wrote Mr. Dougherty advising that he had been absent from his office and expressing the hope that no default judgment had been taken; that on March 2, 1961, Mr. Klein was advised by telephone that a default judgment had been entered. There is thus no conflict in the affidavits.