Majority
p. 716GODSON v. TAUSSIG. (Supreme Court, Appellate Term. July 6, 1900.) Argued before TRUAX, P. J., and DUGRO and SCOTT, JJ.
Headnote
Judgments—Opening Default.Where neither the order to show cause why a default should not be opened,- nor the order opening such default, referred to a verified answer, and the affidavit of merits was insufficient, the default was improperly opened.
Appeal from municipal court, borough of Manhattan, Eleventh district.
Action by George H. Godson against Gustav E. Taussig. From an order opening defendant’s default, plaintiff appeal's.
Reversed.
Stephen W. Collins, for appellant.
Henry W. Beebe, for respondent.
The affidavit of merits upon which the order opening the default was granted was clearly insufficient. The verified answer does not appear to have been before the court, although it is attached to the return. The motion was brought on upon an order to show cause, founded on two affidavits, and the order opening the default was based upon the order to show cause and the two affidavits therein mentioned. In neither order is there any reference to the verified answer.
The order must be reversed, with $10 costs, and proceedings remitted to the court below for further hearing, to be brought on upon at least five days’ notice, with leave to serve affidavit of merits.