De Santis v. Sgambellone

Memorandum: The application made was to vacate the order and warrant. Even though it be considered as a motion to open the default, the papers on which it was founded are insufficient. Such an application should have contained a proposed answer or, in the alternative, an offer to pay the accumulated rent, with costs, into court. As no answer was interposed, there was no issue to be tried and the order should have provided for the payment into court of the accumulated rent. Although we find it necessary to reverse the orders made, we see no reason why the court should not entertain a new application to open the default on proper papers. All concur. (The order and amended order vacate a final order and warrant of eviction previously granted to petitioner.) Present — Taylor, P. J., Love, Vaughan, Kimball and Piper, JJ.