Weinberg v. Klauber — 107 N.Y.S. 578

Majority

p. 578

WEINBERG v. KLAUBER.

(Supreme Court, Appellate Term.

December 12, 1907.)

Headnote

Appeal—Record—Sufficiency—Opening Default.

Where the record on an appeal from an order denying a motion to open a default fails to show that any answer was filed, and no affidavit of merits is shown, the order will be affirmed, with leave to renew the motion and restore papers which appellant claims were lost by the clerk of the court below.

Appeal from Municipal Court, Borough of Manhattan, Fifth District .

Action by Pesach Weinberg against Meyer B. Klauber. From a judgment and order denying a motion to open a default, defendant appeals. Affirmed, with leave to renew the motion.

Argued before GILDERSEEEVE, P. J., and GUY and BRUCE, JJ-

Henry Kuntz, for appellant.

A. B. Schleimer, for respondent.

The defendant appeals from an order denying a motion to open his default. The moving papers are clearly defective, and the court below was justified in denying the motion. No answer appears in the record. It is claimed by the defendant that one was filed and lost by the clerk of the Municipal Court. The appellant should, in such a case, have procured the substitution of a copy. As the record appears before us, we have no way of determining as to whether or not the defendant has a defense to the cause of action set up in the complaint. Neither is there an affidavit of merits in the moving papers. These omissions are fatal.

Judgment and order affirmed, with costs, with leave to the defendant to renew the nfotion in the court below upon proper papers.