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McAvoy v. Tide Water Oil Co.

150 N.Y.S. 641 Court N.Y. App. Div. Decision date 1914-12-24 Docket No. 6684 English

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p. 641
McAVOY v. TIDE WATER OIL CO.
(No. 6684.)
(Supreme Court, Appellate Division, First Department.
December 24, 1914.)

Headnote

Judgment (§ 161*)—Opening Default—Service of Copy of Reply.
A motion to open a default in the service of a reply must be denied, unless a copy of the proposed reply be served with the motion papers.
[Ed. Note.—For other cases, see Judgment, Cent. Dig. §§ 317, 318; Dec. Dig. § 161.*]
Appeal from Special Term, New York County.
Action by Clifford F. McAvoy, as trustee in bankruptcy, against the Tide Water Oil Company. Plaintiff moved to open his default in the service of a reply. From an order granting the motion, defendant appeals. Reversed.
Argued before INGRAHAM, P. J., and McLAUGHLIN, SCOTT, DOWLING, and HOTCHKISS, JJ.
Walter B. Walker, of New York City, for appellant.
David W. Kahn, of New York City, for respondent.

The order appealed from must be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs, on the ground that no copy of the proposed reply was served with the motion papers (Schumpp v. Interurban St. R. Co, 81 App. Div. 576 , 81 N. Y. Supp. 366 ), with leave to the plaintiff, upon payment of such costs, to renew the motion on proper papers.

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