Opinion
August Term, 1897.
Joseph J. Corn, for the appellant.
Franklin Bartlett, for the respondent.
Present — VAN BRUNT, P.J., RUMSEY, PATTERSON, O'BRIEN and PARKER, JJ.
The motion papers were defective in that they contained no copy of the proposed answer. ( Reynolds v. Palen, 13 Civ. Proc. Rep. 200; Phillips v. Equitable Life Ass. Soc., 26 N.Y. Supp. 522.) This objection was not waived, but was taken in the form of an affidavit made by one of the attorneys for the plaintiff. It was error to direct that costs of the motion should abide the event. It held out to the defendant the promise of a reward as a premium upon its default in case the action were determined against the plaintiff.
The order should be reversed, with ten dollars costs and printing disbursements, and the motion denied, with ten dollars costs, but with leave to renew upon other papers.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, but with leave to renew upon other papers.