Schumpp v. Interurban Street Railway Co. — 81 A.D. 576

Majority

p. 576

John Schumpp, as Guardian ad Litem of John Schumpp, Jr., an Infant under the Age of Fourteen Years, Appellant, v. The Interurban Street Railway Company, Respondent.

Headnote

Default in pleading — motion to open it — the proposed pleading should he served.

A motion to open a default in pleading should not be granted unless the proposed pleading is annexed to the moving papers.

p. 577

Appeal by the plaintiff, John Schumpp, as guardian ad litem of John Schumpp, Jr., an infant under the age of fourteen years, from an order of the Supreme Court, made at the Yew York Special Term and entered in the office of the clerk of the county of Yew York on the 7th day of January, 1903, granting the defendant’s motion to open its default.

I. Henry Harris, for the appellant.

F. Angelo Gaynor, for the respondent.

This appeal is from an order granting a motion to open defendant’s default. We have frequently held, and as late as in the case of Allen v. Fowler & Wells Co. ( 45 App. Div. 506 ), that upon a motion to open a default a copy of the proposed pleading should be annexed to the motion papers. As such practice was not followed upon the motion here, it follows that the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs, but with leave to renew upon sufficient papers.

Present—Yan Brunt, P. J., Patterson, O’Brien, Ingraham and Hatch, JJ.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, but with leave to renew upon sufficient papers.