Liquari v. Abramson — 91 N.Y.S. 768

Majority

p. 768

LIQUARI v. ABRAMSON et al.

(Supreme Court, Appellate Term.

January 17, 1905.)

Headnote

1. Default—Application to Open—Affidavits—Vebification.

An order denying defendants’ motion to open a second default properly made defendants’ permission to renew the application conditional on payment of $10 costs, where the order to show cause was founded on affidavits verified two days after the date of the order.

Appeal from Municipal Court, Borough of Manhattan, Fourth Dis-' trict.

Action by Andree Liquari against Samuel I. Abramson and another. From a Municipal Court judgment in favor'of plaintiff, and from an order denying defendants’ motion to open a second default, they appeal.

Affirmed.

Argued before SCOTT, MacLEAN, and DAVIS, JJ.

Louis Levene (Max Schleimer, of counsel), for appellants.

G. W. Hopkins, for respondent.

This appeal is wholly without merit. The order of November 20, 1903, denying defendant’s motion to open his second default, contained permission to renew upon payment of $10 costs—a perfectly proper provision, in view of the fact that the order to show cause was founded upon affidavits verified two days after the date of the order. Those costs the defendant has never paid or tendered, and consequently the second motion to open the same default could not be granted, and was properly denied. It is useless for defendant’s present attorney to attempt to cast the whole blame for defendant’s present plight upon his former attorneys, for the action of the present attorney in attempting to renew the motion without leave, and without paying the costs, rendered the denial of the motion inevitable.

Order and judgment affirmed, with costs.