Cross v. Birch — 58 N.Y.S. 438

Majority

p. 438

(27 Misc. Rep. 295.)

CROSS v. BIRCH et al.

(Supreme Court, Special Term, Onondaga County.

April, 1899.)

Headnote

1. Pleading—Default—Motion to Open—Affidavit of Merits.

A motion to open a default in pleading will be denied if a sufficient affidavit of merits is not presented therewith.

2. Partition—Joint Tenancy as Defense.

In view of the direct provision of Code Civ. Proc. § 1532, permitting partition between joint tenants, the fact that the parties hold such relation cannot be urged as a defense.

Action of partition by Asenath M. Cross against Isabella Birch and others. Defendant Birch moved to open her default in pleading.

Denied.

M. F. Dillon, for the motion.

C. R. Milford, opposed.

This motion must be denied. In the first place, no sufficient affidavit of merits has been presented with the papers. In the second place, the question which, as I understand it, the defendant desires to raise in the case, would not present a good defense. It has been held by the interlocutory judgment that the plaintiff and defendants were tenants in common. The defendant Birch claims that they were joint tenants. Even if this is so, plaintiff' was entitled to bring her action for partition. Code, § 1532. If, a sale being had, defendant Birch was entitled to a different disposition of the proceeds upon the theory of a joint tenancy from that now provided upon the theory of a tenancy in common, this might be a proper basis for an application to the court to have that question further considered. The motion is denied, with $10 costs. Motion denied, with $10 costs.