Opinion
April 1, 1958
Appeal from the Second District Court, Nassau County, JOHN DALY, J.
Jack Farber, in person, and Louis Diamond for Jack Farber, appellant.
John S. Thorp, Jr., for respondent.
Since there was no satisfactory excuse for the default and no showing of a meritorious defense, the motion to open the default was properly denied. Irrespective of whether a default occurs before or after joinder of issue, the party seeking to be relieved therefrom must show not only that the default was the result of mistake, inadvertence, surprise or excusable neglect but also that he has a meritorious cause of action or a meritorious defense. We are mindful of our former decisions to the effect that an affidavit of merits is not required when the default occurs after joinder of issue. The reasons originally assigned for this holding no longer obtain.
The judgment and order should be affirmed, with $10 costs.
PETTE, HART and DI GIOVANNA, JJ., concur.
Judgment and order affirmed, etc.