Majority
p. 230Edwin R. Alberti et al. vs. Daniel R. Peck, imp’d, &c.
Headnote
A proper affidavit of merits must be made for the motion, where defendant seeks to be relieved on terms from a default.Motion by Defendant Peck to set aside default and subsequent proceedings for irregularity.— The suit was brought 19th February 1845, on an acceptance, with notice that it was the sole cause of action. Plaintiffs were non-residents.- 8th March, defendant served order requiring plaintiff to file security for costs, with stay of proceedings; and that defendant have thirty days from the receipt of notice of the filing security for costs, to plead. 26th March, security for costs filed, and notice thereof mailed at New-York, directed to defendant’s attorney, at Clarkson, Monroe co.; which defendant’s attorney did not receive until 30th April, by reason of his being absent from home. 3d May, default was entered. On the
p. 231
6th May plea was served without any affidavit of merits. On the 9th, an affidavit of merits was offered, which was refused by plaintiff’s attorney, unless the defendant would disclose the real defence by which he would abide.
M. T. Reynolds, Befts Counsel. S. B. Jewett, Befts Atty.
J. V. L. Pruyn, Plffs Counsel. T. Sedgwick, Plffs Atty.
There was no affidavit of merits made for the motion, accompanying the moving papers. Defendant relied upon the affidavit of merits made by the attorney, which was served with the plea.
Denied the motion, on the ground that there was not proper affidavit of merits, nor any excuse shown why one was no* made by Peck the defendant. The default was regular, and he would have let in the defendant, on terms, if proper affidavit had been made.
Motion denied with costs.