Leffler v. Beck — 66 N.Y.S. 479

Majority

p. 479

LEFFLER et al. v. BECK.

(City Court of New York,

General Term.

October 29, 1900.)

Headnote

Default Judgment—Restoring Cause to Calendar—Affidavit—Sufficiency.

Where a default judgment was regularly taken at the trial term, and the only evidence to support a motion to open the default was the affidavit of the attorney used in obtaining the order to show cause, without any affidavit of merits, an order sustaining the motion was erroneous.

Appeal from special term.

Action by Moses L. Leffler and another against Sigmund Beck. Judgment for plaintiffs by default. From an order opening the default and restoring the cause to the calendar, plaintiff Moses L. Leffler appeals.

Reversed.

Argued before FITZSIMOHS, O. J., and COHLAH and HASCALL, JJ.

George Hahn, for appellant.

Alfred B. Jaworower, for respondent.

This is an appeal from an order opening a default taken at trial term and restoring the cause to the calendar without costs. It is contended on this appeal that the papers before the court on motion were wholly insufficient to warrant the order made, and we agree with such contention. The default sought to be opened was regularly taken at the trial term. On the motion the only paper used by the respondent was the affidavit of the attorney presented in obtaining the order to show cause, and, while the order recites that it is made on the pleadings, the record does not bring that before us on this appeal. Ho affidavit of merits was used on the motion. The order was erroneously granted, and must be reversed. See Deane v. Loucks, 58 Hun, 555 , 12 N. Y. Supp. 903 ; Davis v. Soloman, 25 Misc. Rep. 695 , 56 N. Y. Supp. 80 .

Order reversed, with costs.