Schumpp v. Interurban St. Ry. Co. — 81 N.Y.S. 366

Majority

p. 366

(81 App. Div. 576

SCHUMPP v. INTERURBAN ST. RY. CO.

(Supreme Court, Appellate Division, First Department.

April 9, 1903.)

Headnote

1. Opening Default—Motion—Copy of Proposed Pleading.

On a motion to open a default, a copy of the proposed pleading should be annexed to the motion papers.

Appeal from Special Term, New York County.

Action by John Schúmpp, as guardian of John Schumpp, Jr., against the Interurban Street Railway Company. From an ordet granting defendant’s motion to open a.default, plaintiff appeals.

Reversed.

p. 367

Argued before VAN BRUNT, P. J., and HATCH, PATTERSON, O’BRIEN, and INGRAHAM, JJ.

I. Henry Harris, for appellant.

F. Angelo Gaynor, for respondent.

This appeal is from an order granting a motion to open defendant’s default. We have frequently held, and as late as in the case of Allen v. Fowler Sr Wells Co., 45 App. Div. 506 , 61 N. Y. Supp. 325 , that, upon a motion to open a default, a copy of the proposed pleading should be annexed to the motion papers. As such practice was not followed upon the motion here, it follows that the order appealed from should be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs, but with leave to renew upon sufficient papers.