Opinion
Argued October 2, 1945 —
Decided October 4, 1945.
Where defendant elected, at the hearing on an application for an extension of time within which to file an affidavit of merits and answer, to rely on oral arguments and an ex parte affidavit, when proper practice dictated that the defendant obtain a rule to show cause why the judgment should not be opened and an opportunity given to file an affidavit of merits and answer, with depositions taken for use on the argument, there was no abuse of discretion by the judge who heard the motion.
On appeal from the Hudson County Court of Common Pleas.
Before BROGAN, CHIEF JUSTICE, and Justices PARKER and OLIPHANT.
For the plaintiff-respondent, Fredman Fredman ( Jacob J. Levey, of counsel).
For the defendant-appellant, Lichtenstein Engel ( Julius Lichtenstein, of counsel).
Defendant appeals from an order of the Hudson County Court of Common Pleas which denied its application for an extension of time within which to file an affidavit of merits and answer and also from the judgment entered against it as the result of said order.
There was no abuse of discretion by Judge Ziegener, who heard the motion. There is nothing in the record upon which the court could have abused its discretion, it was never called upon to exercise it. There was no testimony or proof upon which the court could have made a determination in favor of the defendant. Neither was there any proof by which the defendant explained its failure to file an affidavit of merits, that it had been surprised or that it had a meritorious defense.
The defendant elected at the hearing before the court below to rely on oral argument and an ex parte affidavit which could not properly be used. Peer v. Bloxham, 82 N.J.L. 288; Goldstein v. Weir, 124 Id. 327 . Proper practice dictated that the defendant obtain a rule to show cause why the judgment should not be opened and an opportunity given to file an affidavit of merits and answer. Depositions should then have been taken for use on the argument of the rule.
The order and judgment appealed from are affirmed, with costs.