Heischober v. Polishook

| N.Y. App. Div. | Jul 25, 1912

Rich, J.:

The record shows that a similar motion for the same relief, had been previously denied at a Special Term held by another justice. The practice cannot be sanctioned (Sloan v. Beard, 125 A.D. 625" court="N.Y. App. Div." date_filed="1908-04-24" href="https://app.midpage.ai/document/sloan-v-beard-5206627?utm_source=webapp" opinion_id="5206627">125 App. Div. 625; Blaustein v. Lyons, 74 Misc. 452" court="N.Y. App. Term." date_filed="1911-12-15" href="https://app.midpage.ai/document/blaustein-v-lyons-5413413?utm_source=webapp" opinion_id="5413413">74 Misc. Rep. 452; Platt v. New York & Sea Beach R. Co., 170 N.Y. 451" court="NY" date_filed="1902-04-08" href="https://app.midpage.ai/document/platt-v-new-york--sea-beach-railway-co-3611977?utm_source=webapp" opinion_id="3611977">170 N. Y. 451; Silver & Co. v. Waterman, 127 A.D. 339" court="N.Y. App. Div." date_filed="1908-06-29" href="https://app.midpage.ai/document/silver--co-v-waterman-5207955?utm_source=webapp" opinion_id="5207955">127 App. Div. 339), and the order must be reversed for this reason. In addition to this, the moving papers are fatally defective. They show no excuse for the defendant’s default, or neglect and failure to comply with the requirements of the first order. Defendant admits that he received several letters from his attorney referring to this action requesting him to come to his office, to which he paid no attention. No facts are alleged showing any defense, or from which the inference of a meritorious defense can be presumed. It has been repeatedly held that a litigant applying to a court for an order opening his default must show as a condition precedent to the granting of the relief facts establishing a meritorious defense, and an affidavit of merits is not sufficient.

The order must be reversed, with ten dollars costs and disbursements, and defendant’s motion denied, with costs.

Burr, Thomas and Woodward, JJ., concurred; Jenks, P. J., not voting.

Order reversed, with ten dollars costs and disbursements, and defendant’s motion denied, with costs.