Slade v. Delaware & Hudson Co.

Appellate Division of the Supreme Court of New York

Slade v. Delaware & Hudson Co.

122 A.D. 338, 106 N.Y.S. 887, 1907 N.Y. App. Div. LEXIS 2432

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 13, 1907

StatusPublished

This text of 122 A.D. 338 (Slade v. Delaware & Hudson Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Slade v. Delaware & Hudson Co., 122 A.D. 338, 106 N.Y.S. 887, 1907 N.Y. App. Div. LEXIS 2432 (N.Y. Ct. App. 1907).

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Opinion

Smith, P. J.:

Whether or not the court might have made ah order opening defendant’s default without terms, no such order has been made. The order in fact made required the plaintiff to accept the defend" ant’s answer, thus assuming a right to serve the same when it was tendéred. This assumption, we think, was erroneously made. At the Trial Term when the trial justice made the oral order authorizing the defendant to serve its answer within ten days, no application had been made therefor, no notice of motion served and no affidavit stating facts upon which such an order could be made. Uor does, it appear that the plaintiff in any way waived these requirements to the granting of an order relieving the defendant from its default.

Upon the claim of the defendant as to what representation was made when the original deed was offered to tire plaintiff to sign, the plaintiff had the right to be heard upon affidavit in answer thereto. The matter could not be summarily determined upon the statement of counsel simply, unless the waiver by plaintiff’s [340]*340attorney, of the formalities required in the malting of motions for relief from Default be clearly shown: We are of the opinion, therefore, that the defendant can only have relief upon a formal application to open its default, and that, the order made should be reversed.

The -order should be reversed, with ten. dollars "costs and. disbursements, and motion denied, without costs.

All’ concurred, except Kellogg, J., dissenting.

Order • reversed, with ten dollars costs and disbursements, and motion denied, without costs. ’ ■

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Smith, P. J.:

Whether or not the court might have made ah order opening defendant’s default without terms, no such order has been made. The order in fact made required the plaintiff to accept the defend" ant’s answer, thus assuming a right to serve the same when it was tendéred. This assumption, we think, was erroneously made. At the Trial Term when the trial justice made the oral order authorizing the defendant to serve its answer within ten days, no application had been made therefor, no notice of motion served and no affidavit stating facts upon which such an order could be made. Uor does, it appear that the plaintiff in any way waived these requirements to the granting of an order relieving the defendant from its default.

Upon the claim of the defendant as to what representation was made when the original deed was offered to tire plaintiff to sign, the plaintiff had the right to be heard upon affidavit in answer thereto. The matter could not be summarily determined upon the statement of counsel simply, unless the waiver by plaintiff’s [340]*340attorney, of the formalities required in the malting of motions for relief from Default be clearly shown: We are of the opinion, therefore, that the defendant can only have relief upon a formal application to open its default, and that, the order made should be reversed.

The -order should be reversed, with ten. dollars "costs and. disbursements, and motion denied, without costs.

All’ concurred, except Kellogg, J., dissenting.

Order • reversed, with ten dollars costs and disbursements, and motion denied, without costs. ’ ■

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Bluebook (online)

122 A.D. 338, 106 N.Y.S. 887, 1907 N.Y. App. Div. LEXIS 2432, Counsel Stack Legal Research, https://law.counselstack.com/opinion/slade-v-delaware-hudson-co-nyappdiv-1907.