Godson v. Taussig

The affidavit of merits upon which the order opening the default was granted, was clearly insufficient. The verified *713answer does not appear to have been before the court, although it is attached to the return. The motion was brought on upon an order to show cause founded on two affidavits, and the order opening the default was based upon the order to show cause, and the two affidavits therein mentioned. In neither order is there any reference to the verified answer.

The order must be reversed, with $10 costs, and proceedings remitted to the court below for further hearing, to be brought on upon at least five days’ notice, with leave to serve affidavit of merits.

Present: Truax, P. J., Scott and Dugro, JJ.

Order reversed, with $10 costs, and proceedings remitted to court below.