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Murrell v. Graziade

130 N.Y.S. 140 Court N.Y. App. Term Decision date 1911-06-12 English

Delivered by BIJUR, J.

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p. 140
MURRELL v. GRAZIADE.
(Supreme Court, Appellate Term.
June 12, 1911.)

Headnote

Judgment (§ 145[1] )—Opening Default Judgment—Necessity fob Meritorious Defense.
Where an application to open a default judgment does not contain any allegations showing a meritorious defense, or indicating what the defense may be, the default should not be opened.
[Ed. Note.—For other cases, see Judgment, Cent. Dig. §§ 292-295; Dec. Dig. § 145.[1] ]
Appeal from City Court of New York, Special Term.
Action by Johannes J. Murrell against John D. Graziade. From an order of the City Court of the City of New York opening defendant’s default, plaintiff appeals.
Reversed.
Argued before SEABURY, GUY, and BIJUR, JJ.
Francis B. Wood, for appellant.
Doyle & Kean, for respondent.

The defendant excuses his nonattendance by the affidavit of his attorney that the New York Daw Journal was not delivered at his office until 1 o’clock p. m. of the day on which the case appeared on the calendar at 9:45 a. m.

There is a serious defect in the moving papers, namely, the absence of any allegations showing a meritorious defense, or, indeed, any indication at all of what the defense may be. This omission is fatal. Harvey v. Gillies (Sup.) 117 N. Y. Supp. 204 ; Clews v. Peper, 112 App. Div. 430 , 98 N. Y. Supp. 404 .

Order reversed, with $10 costs and disbursements, and motion denied, with $10 costs. All concur.

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