Markel v. Laden

117 N.Y.S. 916

Opinion

GILDERSLEEVE, P. J.

This is an appeal from an order denying the motion of defendants Laden to open their default. The defendants were indorsers upon notes made by another party, which came into the hands of the plaintiff, who brought this action against the makers and. indorsers. The case being reached, the defendants asked for an adjournment, which was refused, and subsequently an inquest was taken. The defendants Laden thereafter moved upon “all the papers and proceedings in the action,” as well as -upon affidavits, to open their default, and upon this appeal we are furnished with the testimony taken upon the inquest, which clearly shows that the plaintiff failed to prove a cause of action against these defendants. For that reason the default should have been opened, if for no other. Davies v. Myers (Sup.) 113 N. Y. Supp. 9.

Order reversed, with costs,' judgment in lower court vacated, default opened upon payment of $10 costs, and new trial ordered. All concur.