Opinion
October 29, 1970
Appeal from the Allegany County Court.
Present — Goldman, P.J., Marsh, Witmer, Gabrielli and Moule, JJ.
Order reversed, without costs, and motion granted. Memorandum: In this action, commenced on March 11, 1969, plaintiff sought a judgment that it owned certain real property free and clear from any claim of the defendant except for a right of way along its westerly boundary. Defendant took the summons and complaint to an attorney for appearance in the action. On April 2, 1969, two days after the time to answer the complaint had passed, defendant's attorney informed defendant that he was unable to handle the case and withdrew. Defendant took his papers to another attorney who informed him that he would try to obtain an extension of time. Plaintiff's attorney gave this second attorney time to, "decide upon a course of action," but on April 21, 1969 a default judgment was entered against defendant. Plaintiff contends that defendant consented to the default judgment, but defendant denies ever having given such consent. It is not clear whether or not defendant realized that a judgment would be entered against him, and it may have been entered upon a misunderstanding. Defendant claims that he has a meritorious defense in that he has a right of way by deed through the center of plaintiff's property, which right of way he has used since 1965. His contentions are not very impressive; he fails to state how the deed gives such right of way, and adverse possession can only be acquired after 10 years (Real Property Actions and Proceedings Law, § 511). However, defendant made a bona fide effort to answer and should be given an opportunity to interpose his defense ( Celanese Coatings Co. v. Athens Painting Sand Blasting Co., 31 A.D.2d 886). All concur except Witmer, J., who dissents and votes to affirm the order.