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Slade v. Delaware Hudson Co.

Appellate Division of the Supreme Court of New York, Third Department
Nov 13, 1907
122 App. Div. 338 (N.Y. App. Div. 1907)

Opinion

November 13, 1907.

Fred B. Bradley, for the appellant.

Lewis E. Carr, for the respondent.


Whether or not the court might have made an order opening defendant's default without terms, no such order has been made. The order in fact made required the plaintiff to accept the defendant's answer, thus assuming a right to serve the same when it was tendered. This assumption, we think, was erroneously made. At the Trial Term when the trial justice made the oral order authorizing the defendant to serve its answer within ten days, no application had been made therefor, no notice of motion served and no affidavit stating facts upon which such an order could be made. Nor does it appear that the plaintiff in any way waived these requirements to the granting of an order relieving the defendant from its default.

Upon the claim of the defendant as to what representation was made when the original deed was offered to the plaintiff to sign, the plaintiff had the right to be heard upon affidavit in answer thereto. The matter could not be summarily determined upon the statement of counsel simply, unless the waiver by plaintiff's attorney of the formalities required in the making of motions for relief from default be clearly shown. We are of the opinion, therefore, that the defendant can only have relief upon a formal application to open its default, and that the order made should be reversed.

The order should be reversed, with ten dollars costs and disbursements, and motion denied, without costs.

All concurred, except KELLOGG, J., dissenting.

Order reversed, with ten dollars costs and disbursements, and motion denied, without costs.


Summaries of

Slade v. Delaware Hudson Co.

Appellate Division of the Supreme Court of New York, Third Department
Nov 13, 1907
122 App. Div. 338 (N.Y. App. Div. 1907)
Case details for

Slade v. Delaware Hudson Co.

Case Details

Full title:FRANK W. SLADE, Appellant, v . THE DELAWARE AND HUDSON COMPANY, Respondent

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: Nov 13, 1907

Citations

122 App. Div. 338 (N.Y. App. Div. 1907)
106 N.Y.S. 887