Blasser v. Morrisania Milk Co. — 243 A.D. 281

Majority

p. 281

Seymour Blasser, an Infant, by His Guardian ad Litem, Samuel Blasser, and Another, Respondents, v. Morrisania Milk Company, Appellant.

First Department,

January 25, 1935.

Sydney C. Weinstein of counsel [Hays, Wolf, Kaufman & Schwabacher, attorneys], for the appellant.

Joseph Speiser of counsel [Speiser & Speiser, attorneys], for the respondents.

The action was begun by the service of the summons. Defendant’s notice of appearance demanded a copy of the complaint. On default in its service, defendant moved to dismiss. (Civ. Prac. Act, § 257.) In opposition, an affidavit of plaintiffs’ attorney attempted to excuse the default so interposed. There was no affidavit of merits, nothing to show a meritorious cause of action, no proposed pleading, and no affidavit by plaintiffs or by any one having knowledge of the facts presented. The attorney alleged merely that the infant plaintiff was struck and knocked down by an automobile and was severely injured. It is not shown even that the injury was caused by an automobile owned or controlled by the defendant.

No cross-motion to be relieved of the default was made. Instead there was merely request in the opposing affidavit that the defend

p. 282

ant’s motion to dismiss be denied and the defendant be directed to accept service of the complaint. Accordingly, defendant’s motion was denied on condition that plaintiffs pay ten dollars costs and serve the complaint within ten days.

We are of the opinion that the order made was improper. (Titus v. Halsted, 209 App. Div. 66 ; Manzo v. Ajello 216 id. 733; Fitzgerald Mfg. Co. v. Alexander, 200 id. 164.)

The order appealed from should be reversed, with twenty dollars costs and disbursements, and the motion granted, with ten dollars costs, but without prejudice to an application of plaintiffs, upon payment of said costs, to open their default upon papers which will show a meritorious cause of action by one having knowledge of the facts and upon a proper pleading.

Martin, P.' J., Merrell, McAvoy and Glennon, JJ., concur.

Order reversed, with twenty dollars costs and disbursements, and motion granted, with ten dollars costs, but without prejudice to an application of plaintiffs, upon payment of said costs, to open their default upon papers which will show a meritorious cause of action by one having knowledge of the facts and upon a proper pleading.