Berlin Realty Corp. v. Gorman

153 Misc. 833, 276 N.Y.S. 233, 1934 N.Y. Misc. LEXIS 1870

• Court: Appellate Terms of the Supreme Court of New York
• Decided: December 20, 1934
• Status: Published

Opinion

Per Curiam,

Where an affidavit of merits is once filed, it may by reference be used on a subsequent motion. (Prescott v. Roberts, 6 Cow. 46.) Here a complete statement of the merits of the defense was pn file prior to this motion, Upon it the court ruled on plaintiffs motion for summary judgment that defendant was entitled to a trial, Such affidavits were referred to in the affidavits used here, upon this subsequent motion by defendant to open his default. The default w.as excusable.

Order reversed, motion granted, judgment vacated, and case set down for trial for December 28, 1934.

All concur; present, Lydon, Hammer and Shientag, JJ.