Levitan v. Short

120 N.Y.S. 775

• Court: Appellate Terms of the Supreme Court of New York
• Decided: January 21, 1910
• Status: Published

Opinion

PER CURIAM.

Appeal from an order denying defendant’s motion to open his default, andl bringing up for review the judgment' taken by default.

The motion was promptly made upon an affidavit setting forth that defendant inadvertently- made a memorandum of the return day different from that stated in the summons, and further alleging a general release and an accepted order for a bond delivered to plaintiff in full settlement of the dispute between them, andl further containing an affidavit of merits, and further stating his financial ability to respond to any judgment awarded herein against him. Accompanying this affidavit was defendant’s proposed answer, setting up a good defense. No opposing affidavits were submitted, and the moving affidavits set forth all the essential facts entitling the defendant to the relief asked for, andl the application should have been granted.

Order reversed, judgment vacated, and new trial ordered, with costs to the appellant to abide the event.