Anglo-American Authors' Ass'n v. Slutsky

116 N.Y.S. 31

• Court: Appellate Terms of the Supreme Court of New York
• Decided: April 8, 1909
• Status: Published

Opinion

GILDERSLEEVE, P. J.

The defendant appeals from an order denying his motion to open his default. The plaintiff’s , cause of action is based upon a contract made between the firm of A. R. Keller & Co. and the defendant for the delivery to defendant of a set of books. The minutes taken upon the inquest are attached to the return.

Without regard to the excuses given by the defendant for his failure to appear upon the' return day of the summons, there is sufficient ground for a reversal of the order herein, for the reason that no cause of action is shown to exist in this plaintiff. No assignment of the contract sued upon is shown, .and how or in what manner this plaintiff claims to have a right to maintain an action upon such contract does not appear. Where - the minutes taken upon an inquest fail to show a cause of action against a defendant, a default should be opened. Merritt & Chapman Co. v. Koronsky (Sup.) 113 N. Y. Supp. 744.

Order reversed, with costs, and default opened in the court below upon payment of $10 costs. All concur.