Gordon v. Satenstein

74 Misc. 406, 132 N.Y.S. 301

• Court: Appellate Terms of the Supreme Court of New York
• Decided: December 15, 1911
• Status: Published

Opinion

Giegerich, J.

Tke defendant appeals from an order denying kis motion to open his default. The motion was made upon an ordey to show cause and was accompanied by an affidavit of merits, a verified answer and an affidavit, in which one of the defendants swears that he resides at Bo. 22 Mt. Morris Park West, in this city, and did so reside there at the time it is alleged he was served with the process in this action,. and that he was never served with process in this action, and asks that he be allowed to come in and defend the action. The process server testifies that he served this defendant at Bo. 25 Mt. Morris Park West. Upon this issue of fact the court below denied the defendant’s motion to open his default. Under such circumstances the defendant should be allowed his day in court, and the motion to open the default should have been granted. Monroe Bank v. Lichtenstein, 96 N. Y. Supp. 260.

Order reversed and default opened, with costs to appellant to abide the event, and the......'day of............, 1911, fixed for the trial.

Lehman and Pendleton, JJ., concur.

Order reversed and default opened, with costs to appellant to abide event.