267 A.D. 941 | N.Y. App. Div. | 1944
Order affirmed, with ten dollars costs and disbursements to respondent to abide the event. Memorandum: The motion was apparently made under section 46 of the Buffalo City Court Act (L. 1909, eh. 570) which contains no time limitation on motions to open default judgments. Since a verified answer had already been served, the moving papers show merits because they indicate that the records of the Home Owners Loan Corporation will establish that plaintiff’s claim was paid. Assuming, then, that section 108 of the Civil Practice Act applies (Allen v. Hungarian Mother’s Club, Inc., 259 App. Div. 139), still the motion was timely made, because no certified copy of the judgment, ■with notice of entry, was served. (Redfield v. Critchley, 277 N. Y. 336.) There was sufficient basis for the exercise of the court’s discretion to open this default. All concur. (The order affirms an order of the Buffalo City Court which vacated a default judgment in favor of plaintiff and restored the case to the ready calendar, in an action to recover amounts claimed to be due on the sale of real property.) Present— Cunningham, P. J., Taylor, Dowling, McCurn and Larkin, JJ.
