Ryan v. Duffy

54 A.D. 199, 66 N.Y.S. 649

Opinion

Per Curiam:

The plaintiff seeks to excuse his delay in making this application "because he did not learn the facts until shortly before the motion was made. But this excuse appears only by the affidavit of his .attorney. The plaintiff himself is not sworn. This defect is fatal, and for this reason the denial of the motion was correct and the •order must be affirmed, with ten dollars costs and disbursements, without prejudice, however, to the right of the plaintiff, upon payment of the costs of the appeal and of the motion below, to renew ■upon proper papers.

Present — Van Brunt, P. J., Rumsey, Ingraham, McLaughlin and Hatch, JJ.

Order affirmed, with ten dollars costs and disbursements, without prejudice to plaintiff’s right, on payment of costs of appeal and motion below, to renew on proper papers.