Opinion
December 20, 1934.
Appeal from the Municipal Court of New York, Borough of Bronx, Second District.
Edgar P. Feeley, for the appellant.
Solomon Mermelstein, for the respondent.
Where an affidavit of merits is once filed, it may by reference be used on a subsequent motion. ( Prescott v. Roberts, 6 Cow. 46.) Here a complete statement of the merits of the defense was on file prior to this motion. Upon it the court ruled on plaintiff's motion for summary judgment that defendant was entitled to a trial. Such affidavits were referred to in the affidavits used here, upon this subsequent motion by defendant to open his default. The default was excusable.
Order reversed, motion granted, judgment vacated, and case set down for trial for December 28, 1934.
All concur; present, LYDON, HAMMER and SHIENTAG, JJ.