Opinion
April, 1930.
Order reversed upon the law and the facts, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, without prejudice, however, to a new application upon proper papers. The moving papers were clearly insufficient. The original application was not to open the default, but to compel plaintiff to accept defendant's answer. The defendant, evidently, labored under a mistaken impression that the time between the entry of an order, granted upon his application, to compel plaintiff to file security for costs, and compliance therewith, was not to be computed as a part of the time within which his answer was to be served. No reason in fact was given for the default and no facts are stated in support of defendant's claim that he has a meritorious defense, or in support of defendant's alleged counterclaim. ( Rothschild v. Haviland, 172 App. Div. 562; Metropolitan Hotel Supply Co. v. Schwartzman, 228 id. 821, decided by Appellate Division, Second Department, March 3, 1930.) Lazansky, P.J., Rich, Kapper, Hagarty and Scudder, JJ., concur.