Henry Prouse Cooper & Co. v. Findley

Headnote

Practice—Inquest not oq>ened in this case on affidavit of merits, &e.

Appeal by defendant from an order denying motion of defendant to open judgment against defendant entered after issue upon an inquest at trial term.

The motion was based on an affidavit as to facts, and on an affidavit of merits. The opposing affidavits put in by the plaintiff claimed that the defendant had admitted the embezzlement alleged in the pleadings and that his counsel made a similar admission, and the said affidavits stated other grounds against granting the favor asked for.

The Court at General Term said :—“ The discretion of the judge was properly used. It would not have been proper to open the default. The statements as to the reason for defendant’s not appearing are vague and indefinite and the affidavit of merits was more than counterbalanced by plaintiff’s affidavits. The affidavit of merits would be true, if the plaintiff had made an insignificant error in his demand.”