Majority
p. 814RICHARDSON v. SUN PRINTING & PUBLISHING ASS’N. (Supreme Court, Appellate Division, First Department. August 4, 1897.) Argued before VAN BRXJNT, P. J., and RUMSEY, PATTERSON, O’BRIEN, and PARKER, JJ.
Headnote
1. Pleading—Motion to Open Default.Motion papers containing no copy of the proposed answer are insufficient to authorize the opening of defendant’s default.
2. Same—Costs—Event of Suit.
The costs of a motion to open defendant’s default should not abide the event.
Appeal from special term, New York county.
Motion by the Sun Printing & Publishing Association to open its default, and to answer to the complaint of Henry A. Richardson. From an order granting the motion, with $10 costs of motion to abide the event, plaintiff appeals.
Reversed.
Joseph J. Com, for appellant.
Franklin Bartlett, for respondent.
The motion papers were defective, in that they containéd no copy of the proposed answer. Reynolds v. Palen, 13 Civ. Proc. R. 200; Phillips v. Society (Sup.) 26 N. Y. Supp. 522 . This
p. 815
objection was not waived, but was taken in the form of an affidavit made by one of the attorneys for the plaintiff'. It was error to direct that costs of the motion should abide the event. It held out to the defendant the promise of a reward as a premium upon its default in case the action were determined against the plaintiff.
The order should be reversed, with $10 costs and printing disbursements, and the motion denied, with $10 costs, but with leave to renew upon other papers.