Allen v. Fowler & Wells Co.

45 A.D. 506, 61 N.Y.S. 325

Opinion

Rumsey, J.:

This order must be reversed. It is a well-settled rule that when one, being in default for failure to serve a pleading, moves for leave to open the default, a copy of the proposed pleading must be annexed to the ■motion papers. ■ (Stern v. Knapp, 52 N. Y. Super. Ct. 14; Powers v. Trenor, 3 Hun, 3.) Not only did the plaintiff neglect to serve a -copy of liis proposed reply, hut is impracticable to ascertain from his •affidavit what the nature of that reply is. The motion, therefore, for leave to serve a reply should have been denied.

From an examination of the counterclaim in the answer, it is not possible to divine any reason why the discovery and inspection of the defendant’s books was necessary to enable the plaintiff to serve his reply. If the facts set up in his affidavit entitled the plaintiff to the discovery and inspection at all, it is for the purpose of enabling him to prepare for the trial, and such relief will not be given him for such a purpose until the case is at issue. In the most favorable view that can be. taken for the plaintiff, his application was premature. That, motion should have also been denied.

The order at Special Term must, therefore, be reversed, .with ten •dollars costs and' disbursements, and the motion denied, with ten dollars costs.

Van Brunt, B. J., Barrett, Ingraham and McLaughlin, JJ., •concurred.

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