p. 194Appeal by the plaintiff, Harry Heischober, an infant, from an' order of the Supreme' Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 26th day of February, 1912, granting the defendant’s motion to open his default and restore the case to the calendar for trial.
The action is to recover for an alleged false and malicious arrest and imprisonment of the plaintiff, and was on the. March, 1911, calendar of the Kings County Trial Term. It was marked ready on the call of the calendar on the first day, but when reached in its regular order the defendant did not appear, his default was noted and the case marked for inquest. The defendant thereupon moved at Special Term, and obtained an order opening his default and restoring the case to the calendar upon condition that he pay twenty dollars costs within five days, and in the event of defendant’s failure to make such payment the motion was denied, with ten dollars costs. More than ten months after this order, payment not having been made, án inquest was taken, and judgment entered on February tenth following, whereupon defendant obtained an order opening his default and restoring the case to the calendar for trial. The affidavit upon which the second order was obtained does not disclose the application for the first order and defendant’s failure to comply with its requirements; upon the contrary, it states “ That no previous application for the proposed order has been made to any court or judge.”
Henry D. Levy, for the appellant.
Leo Lerner, for the respondent.
The record shows that a similar motion for the same relief, had been previously denied at a Special Term held by another justice. The practice cannot be sanctioned (Sloan v. Beard, 125 App. Div. 625 ; Blaustein v. Lyons, 74 Misc. Rep. 452 ; Platt v. New York & Sea Beach R. Co., 170 N. Y. 451 ; Silver & Co. v. Waterman, 127 App. Div. 339 ), and the order must be reversed for this reason. In addition to this, the moving papers are fatally defective. They show no excuse for the
p. 195defendant’s default, or neglect and failure to comply with the requirements of the first order. Defendant admits that he received several letters from his attorney referring to this action requesting him to come to his office, to which he paid no attention. No facts are alleged showing any defense, or from which the inference of a meritorious defense can be presumed. It has been repeatedly held that a litigant applying to a court for an order opening his default must show as a condition precedent to the granting of the relief facts establishing a meritorious defense, and an affidavit of merits is not sufficient.
The order must be reversed, with ten dollars costs and disbursements, and defendant’s motion denied, with costs.
Burr, Thomas and Woodward, JJ., concurred; Jenks, P. J., not voting.
Order reversed, with ten dollars costs and disbursements, and defendant’s motion denied, with costs.