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Markel v. Laden

117 N.Y.S. 916 Court N.Y. App. Term Decision date 1909-06-25 English

Delivered by GILDERSLEEVE, P. J.

Contents

Majority

p. 916
MARKEL v. LADEN et al.
(Supreme Court, Appellate Term.
June 25, 1909.)

Headnote

Judgment (§ 145[1] )—Opening Default.
Default should be opened, on motion therefor on all the papers and proceedings in the action; the testimony taken on the inquest not proving a cause of action against defendants.
[Ed. Note.—For other cases, see Judgment, Cent. Dig. §§• 271, 292-295; Dec. Dig. § 145.[1] ]
Appeal from Municipal Court, Borough of Manhattan, First District.
Action by Louis Markel against Abraham Laden and others. From an order denying a motion, to open their default, defendants Laden appeal.
Reversed, and default opened.
Argued before GILDERSLEEVE, P. J., and MacLEAN and SEABURY, JJ.
Goetz & Goetz, for appellants.
Abraham S. Weltfisch, for respondent.

This is an appeal from an order denying the motion of defendants Laden to open their default. The defendants were indorsers upon notes made by another party, which came into the hands of the plaintiff, who brought this action against the makers and. indorsers. The case being reached, the defendants asked for an adjournment, which was refused, and subsequently an inquest was taken. The defendants Laden thereafter moved upon “all the papers and proceedings in the action,” as well as -upon affidavits, to open their default, and upon this appeal we are furnished with the testimony taken upon the inquest, which clearly shows that the plaintiff failed to prove a cause of action against these defendants. For that reason the default should have been opened, if for no other. Davies v. Myers (Sup.) 113 N. Y. Supp. 9 .

Order reversed, with costs,' judgment in lower court vacated, default opened upon payment of $10 costs, and new trial ordered. All concur.