11 Misc. 2d 485 | N.Y. App. Term. | 1958
Since there was no satisfactory excuse for the default and no showing of a meritorious defense, the motion to opon the default was properly denied. Irrespective of whether a default occurs before or after joinder of issue, the party seeking to be relieved therefrom must show not only that the default was the result of mistake, inadvertence, surprise or excusable neglect hut also that be bas a meritorious cause of action or a meritorious defense. We are mindful of onr former decisions to the effect that an affidavit of merits is not required when the default occurs after joinder of issue. The reasons originally assigned for this holding no longer obtain.
The judgment and order should he affirmed, with $10 costs.
Pette, Hart and Di G-íovañna, jj., concur.
judgment and order affirmed, etc.