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Goldfeder v. Lincoln

51 N.Y.S. 215 Court N.Y. App. Term Decision date 1898-04-27 English

Delivered by *216 GIEGERICH, J.

Contents

Majority

p. 215
GOLDFEDER v. LINCOLN.
(Supreme Court, Appellate Term.
April 27, 1898.)

Headnote

Default Judgment—Vacating.
An affidavit of merits is required in order to open a judgment taken by default, under General Buies of Practice, rule 23 (Greater New York Charter, § 1377).
Appeal from Fifth district court.
Action by Lewis Goldfeder against David Lincoln. From an order opening a default, plaintiff appeals.
Reversed.
Argued before BEEKMAN, P. J., and GILDEBSLEEVE and GIEGERICH, JJ.
Leon Sanders, for appellant.
Abraham Oberstein, for respondent.

Without passing upon the sufficiency of the order, accompanied, as it is, by a statement of the justice’s reasons for granting the same, the order must, nevertheless, be reversed because of the omission to present an affidavit of merits. Thornall v. Turner (herewith decided) 51 N. Y. Supp. 214 .

The counsel for the respondent is in error as to the statement contained in his brief that the order was filed on the 11th day of January, 1898. An examination of the return, on the contrary, shows that it was filed on the 10th day of January, 1898, the date mentioned in the notice of appeal. The order should therefore be reversed, with costs, and the motion remitted to the court below for further hearing, to be brought on upon at least five days’ notice, with leave to the defendant to file and serve an affidavit of merits. All concur.