Opinion
December 17, 1956
Elliot J. Lefkowitz for Edwin Murray, defendant.
Morris Zweibel for plaintiff.
This is a motion by defendant Murray to vacate a default judgment entered against him, and for other relief.
The accident occurred on January 1, 1950. Plaintiff claims personal service of process on the moving defendant on November 16, 1950. There was no appearance or answer. Plaintiff did not proceed thereon. An order for substituted service, grounded upon affidavits sworn to December 26 and 28, 1951, was obtained on January 4, 1952, and filed with proof of service on January 10, 1952. There was no appearance or answer thereto. Plaintiff proceeded some years later by way of default, and an inquest, held February 29, 1956, resulted in a judgment being entered on April 12, 1956 for $7,632.85 against the moving defendant. The defendant claims nonservice of process, either personally or substituted. He also asserts noncompliance with rule 190 of the Rules of Civil Practice which provides that where a default judgment is not taken within one year after the default, "at least five days' notice of the time and place of the application [to the court] for judgment" must be given to the defendant.
Plaintiff requests that, if the court open the default and grant defendant permission to appear and answer, defendant be required to post a bond in the amount of the present judgment as security for the protection of plaintiff. Plaintiff misunderstands the nature of the relief prayed for by defendant. Defendant does not move to open his default as a matter of discretion. He seeks to vacate the default judgment as a matter of right. Since the file does not disclose, and plaintiff does not assert, that there was notice to defendant as required by rule 190, or that "such notice" was (as therein provided) "dispensed with by order of the court or judge upon good cause shown", the inquest and judgment must be vacated.
In the circumstances, it is not incumbent upon me to resolve directly or by way of reference the disputed issue of service of process. That is a matter which will have to be determined if and when plaintiff proceeds upon due notice to enter judgment by default or defendant seeks to vacate the alleged service of process or to open his default thereunder.
An order has been entered accordingly vacating the inquest and judgment herein.