Dewey v. Morris

108 Misc. 407

• Court: New York Supreme Court
• Decided: August 15, 1919
• Status: Published

Opinion

Thompson, J.

So far as plaintiff’s negligence in failing to appear when her case was reached in regular order is concerned, it must be held that the reasonable excuse therefor which is required by section 724 of the Code of Civil Procedure has been established.

But the papers fail to set forth facts showing a meritorious case. Rothschild v. Haviland, 172 App. Div. 562.

One who addresses himself to the court on the plea of favor must show himself entitled thereto in all ways, and the duty is laid upon the court to closely scrutinize such an application in order that it may be advised of the merit of the mover’s case before determining whether or not he is entitled to the extraordinary relief he demands. For this purpose the facts themselves must be shown; an affidavit of merits is not sufficient. Heischober v. Polishook, 152 App. Div. 193; Dana v. Thaw, 56 Misc. Rep. 612 ; Empire State Pickling Co. v. Pfister, 161 App. Div. 909, affg. 80 Misc. Rep. 162.

The motion is denied, with ten dollars costs, without prejudice to a further application on additional papers showing merit.

Ordered accordingly!