90 N.Y.S. 806 | N.Y. Sup. Ct. | 1904
This is a motion made on behalf of the defendant upon the return of an order requiring the plaintiff to show cause why an order should not be made determining and declaring that the defendant is not in default for failure to appear and answer herein, or should it be determined that defendant is in default, then opening such default and allowing the defendant to serve an amended answer. A preliminary objection is made to the consideration of the merits of the motion by the court, “ because the affidavit upon which the order to show cause was granted does not state the' time appointed for holding the next trial term in this .county.” This objection is made under Rule 37 of the General Rules of Practice, which provides “ the party shall, in his affidavit, state the present condition of the action, and whether at issue, and, if not yet tried, the time appointed for holding the next Special or Trial Term where the action is triable.” The preliminary objection should be overruled, because this motion is for the very purpose of securing a judicial determination of the question whether the action is or is not at issue. Manifestly there can be now no definite
Motion granted, no costs,