Cahill v. Lilienthal

Freedman, P. J. The plaintiff herein first appeals from an order made and entered on the 28th day of July, 1899, setting aside the default- of the defendant and vacating a judgment entered in favor of the plaintiff. The order was granted upon an affidavit, made by one of the attorneys for the defendant, and both the order and the affidavit are fatally defective. The affidavit contains no statement that an affidavit of merits was ever made or filed in the action, nor does it show that manifest injustice has been done the defendant by the taking of the judgment which is sought to be vacated. TJpon a motion made to [430] open a default these are essential requirements and cannot be disregarded. Langbien’s Municipal Court Pr. 286 and cases therein cited. The order opening the default and vacating the judgment is invalid, for the reason that it does not state the grounds upon which the same was granted. Stivers v. Ritt, 29 Misc. Rep. 341; 60 N. Y. Supp. 507. The order must, therefore, be reversed. After the order aforesaid was made and filed, and after an appeal had been taken therefrom by the plaintiff herein, the parties' proceeded to a trial of the issues. At the beginning of the trial it was conceded in open court, that the plaintiff went to trial without prejudice to her rights under the appeal taken from the order above mentioned; and, from a judgment rendered in favor of the defendant the plaintiff again appeals. As the order vacating the first judgment was.invalid,.the reversal of the order restores the judgment which it vacated, and it follows that the judgment appealed from must, therefore, be reversed. MacLean and Leventritt, JJ., concur. Order reversed, with costs, and judgment appealed from reversed, with costs.