Christal v. Fifty-Five Columbus Corp.

Full title: JOHN CHRISTAL, Respondent, v. FIFTY-FIVE COLUMBUS CORP., Appellant

Court: Supreme Court, Appellate Term, First Department

Date published: May 20, 1938

168 Misc. 118 (N.Y. App. Term 1938)

5 N.Y.S.2d 227

Opinion

May 20, 1938.

Appeal from the Municipal Court of the City of New York, Borough of Manhattan, Third District.

Francis J. Purdue [ Jack Teck of counsel], for the appellant.

O'Malley Wilson [ Nicholas P. Callaghan of counsel], for the respondent.

PER CURIAM.

Although no legal excuse was offered for the default suffered by the defendant on the return day of the motion for summary judgment, the judgment must be vacated as it is not based upon the affidavit of one having personal knowledge of the facts as required by rule 113 of the Rules of Civil Practice.

Orders reversed, and motions to open default and vacate judgment granted, with leave to plaintiff to move de novo for summary judgment.

All concur. Present — HAMMER, SHIENTAG and NOONAN, JJ.