Prudential Ins. Co. of Am. v. Kantrowitz

• Decision Date: 24 November 1936
• Citation: 188 A. 73
• Parties: PRUDENTIAL INS. CO. OF AMERICA v. KANTROWITZ et al.
• Court: New Jersey Court of Chancery

188 A. 73

PRUDENTIAL INS. CO. OF AMERICA

v. KANTROWITZ et al.

Court of Chancery of New Jersey.

Nov. 24, 1936.

Syllabus by the Court.

1. The Court of Chancery is vested with discretionary power, even after enrollment, to open its decrees regularly obtained by default for the purpose of affording parties an opportunity of interposing their defense, when such defense is meritorious, and they through accident, mistake, or surprise, or because of their solicitor's neglect, have been deprived of their right to present it or to be heard with relation thereto.

2. The court will not, upon the mere unsupported and uncorroborated affidavit of the defaulting party, especially where such is fully and circumstantially controverted by the answering affidavits, disturb or reopen its decree regularly entered by default.

3. Admissions and agreements relative to the conduct or prosecution of a pending action made by parties or their solicitors out of court, if not in writing and signed by the persons thereto, may, in case of dispute, be properly denied recognition.

4. Where defendants assert, in excuse of their failure to file an answer, an alleged arrangement between them and complainant's solicitor to withhold its filing until the termination of negotiations, allegedly then pending, and where the proof indicates that no such arrangement was ever made, defendants' application to reopen a default decree regularly entered will be denied.

Suit by the Prudential Insurance Company of America against Cecelia K. Kantrowitz and others, wherein defendants sought to have made absolute an order requiring complainant to show cause why decrees entered in a foreclosure suit should not be vacated.

Order discharged.

Glenn K. Carver, of Newark, for complainant.

Jacob I. Jaffe, of Passaic, for defendants.

LEWIS, Vice Chancellor.

Defendants, Cecelia K. Kantrowitz and Reuben B. Kantrowitz, seek to have made absolute an order procured by them requiring complainant to show cause why the decrees, pro confesso and final, regularly entered in a foreclosure suit should not be vacated and opened for the purpose of affording them an opportunity to file an answer and interpose their defense.

It appears from the affidavits here submitted that the bill of complaint was filed on August 9, 1935, subpoena to answer was on September 30, 1935, duly served on said defendants, and the time for filing of answer, expiring on October 20, 1935, was, upon said defendants' request, extended by complainant's solicitor from time to time until November 19, 1935, on which day, and the one preceding, their requests for further extensions of time were refused by him, but who thereupon, at their request, indorsed his consent upon an answer then produced by them consenting to its filing as "of within time."

Said answer not having been thereafter filed, complainant proceeded with its action and caused to be entered therein a decree pro confesso, a final decree, and a writ of fieri facias to be issued pursuant to and by virtue of which it proceeded to advertise and was about to sell the mortgaged lands and premises, when said defendants, upon their verified petition, applied for and obtained the order to show cause now under consideration.

The Court of Chancery is, from time immemorial, vested with discretionary power, even after enrollment, to open its decrees regularly obtained by default for the purpose of affording parties an opportunity of interposing their defense, where such defense is meritorious and they through accident, mistake, or surprise, or because of their solicitors' neglect, have been deprived of their right to present it or be heard with relation thereto. Miller v. Hild, 11 N.J.Eq. 25; Brinkerhoff v. Franklin, 21 N.J.Eq. 334; Embury v. Bergamini, 24 N.J.Eq. 227; Emery v. Downing, 13 N.J.Eq. 59; Carpenter v. Muchmore, 15 N.J.Eq. 123; Day v. Allaire, 31 N.J.Eq. 303; Morris v. Hinchman, 32 N.J.Eq. 204, 205; Boyer v. Boyer, 77 N.J.Eq. 144, 145, 76 A. 309; Williams v. Lowe, 79 N.J.Eq. 173, 81 A. 760; Sandford v. Wellborn, 85 N.J.Eq. 577, 96 A. 1918; O'Neill v. Linowitz, 92 N.J.Eq. 179, 111 A. 659...