Majority
p. 329Henry A. Richardson, Appellant, v. The Sun Printing and Publishing Association, Respondent.
Headnote
Motion papers to open a default in pleading — they should contain a copy of the proposed answer — costs not granted to abide the event.Motion papers used to open a default in answering must contain a copy of the proposed answer.
Where such a motion is granted, costs should not he granted to abide the event.
Appeal by the plaintiff, Henry A. Richardson, from an order of the Supreme Court, made at the New York. Special Term and entered in the office of the clerk of the county of New York on the 4th day of June, 1897, granting the defendant’s motion to open a default and to plead in the action, with costs of the motion to abide the event.
Joseph J. Corn, for the appellant.
Franklin Bartlett, for the. respondent.
The motion papers were defective in that they contained no copy of the proposed answer. (Reynolds v. Palen, 13 Civ. Proc. Rep. 200; Phillips v. Equitable Life Ass. Soc., 26 N. Y. Supp. 522 .) This objection was not waived, but was taken in the form of an affidavit made by one of the attorneys for the plaintiff. It was error to direct that costs of the motion should abide the event. It held out to the defendant the promise of a reward as a premium upon its default in case the action were determined against the plaintiff.
p. 330
The order should be reversed, with ten dollars costs and printing disbursements, and the motion denied, with ten dollars costs, but with leave to renew upon other papers.
Present — Van Brunt, P. J., Rumsey, Patterson, O’Brien and Parker, JJ.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, but with leave to renew, upon other papers.