Majority
p. 627COGNATO v. FITZHENRY. (Supreme Court, Appellate Term. January 5, 1911.) Argued before GIEGERICH, BRADY, and GAVEGAN, JJ.
Headnote
Judgment (§ 161[1] )—Default—Motion to Vacate—Proposed Answer.A motion to open a default, which occurred before joinder of issue, must be accompanied by a copy of the proposed answer.
- [Ed. Note.—For other cases, see Judgment, Cent. Dig. §§ 317, 31S; Dec. Dig. § 161.*]
Appeal from Municipal Court, Borough of Manhattan, Second District.
Action by Anrelio Cognato against Charles J. Fitzhenry. From an order denying plaintiff’s motion to open his default, he appeals.
Affirmed.
Herman Kahn, for appellant.
H. & H. S. Mendelsohn, for respondent.
The defendant appeals from an order denying his motion to open his default. The order appealed from granted
p. 628
him leave to renew upon proper papers. The defendant • defaulted ■before joinder of issue, and upon the motion did not file either ,an affidavit of merits or a copy of his proposed answer, and evidently liis motion was denied for that reason, and properly. A copy of the proposed answer must be annexed to and served with the motion papers. Schumpp v. Int. St. Ry. Co., 81 App. Div. 576 , 81 N. Y. Supp. 366 ; Meyer v. City of New York, 80 App. Div. 584 , 80 N. Y. Supp, 774 ; Kuh v. Goldman, 119 App. Div. 148 , 104 N. Y. Supp. 255 ; Reid v. Jackson’s Express, 107 N. Y. Supp. 633 ; Bloch v. Weinstein, 113 N. Y. Supp. 1067 .
Order affirmed, with costs. All concur.
Cases cited
- Schumpp v. Interurban St. Ry. Co. 81 App. Div. 576 p. 628