Guadagnino v. De Murcie

There is no affidavit of merits from the plaintiffs on this motion to open a default judgment, and the only explanation offered by plaintiffs’ counsel is a statement that he wished to avoid the unpleasantness and embarrassment of going to his clients for an affidavit. There is no denial of the sworn statement of defendant’s counsel that he had been advised by plaintiffs’ counsel that plaintiffs had decided to discontinue the action and that he wished to open the default only for the purpose of signing a stipulation of discontinuance, without costs. Upon the showing thus made there was no occasion for opening the default and the order granting the motion is unanimously reversed, with $20 costs and disbursements to appellant, and the motion denied. Settle order on notice. Present — Peck, P. J., Glennon, Dore, Cohn and Callahan, JJ.