Sandowitz v. Duane

Per Curiam. The contention, on the part of counsel for the respondent, is that this order is not one opening a default, but is for the restoring of a cause to the calendar for trial, and that, therefore, it is not appealable to this court, we can hardly agree with this contention. An examination of the order-itself shows that the motion was treated as one for the opening of, defendant’s- default. In the last part of the order we find a recital of the grounds upon which it was made, evidently in harmony with the statutory provision which requires that an order opening a default shall contain such a statement. In his concluding words the justice says: “ I find that the plaintiff will not be injured nor will his, rights or remedy be prejudiced by giving the defendant an opportunity to come in and defend this action upon the merits, and in furtherance of justice I made this order granting the defendant leave to come in and defend this action upon complying with the terms herein set forth.” The whole order is inconsistent with any other theory [631] than that it is one resting upon the existence of a condition under which the defendant had lost his right to defend the action. At the time when this motion was made an order had been made by Mr. Justice Fallon and entered vacating the original order that was made opening defendant’s default. It may be, upon the facts appearing before us, that it was proper for the court in turn to vacate that order, but that has not been done, so that when the motion was made which resulted in the order appealed from, the defendant was still in default for want of a pleading. It is, therefore, difficult to construe the order otherwise than as one again opening such default. The order was, therefore, appealable to this court. Counsel for the appellant raises certain objections to the order, which, although technical, we are still bound to consider There was but one affidavit, that of the attorney for the respondent, upon which the order appealed from was made. No affidavit of merits, however, was submitted, nor is there any proof that the defendant has any defense to the action. His affidavit at least should have been produced showing the facts upon which he relies for a defense, in order that the court might be able to see that the claim made on his behalf of the existence of a meritorious defense had some reasonable foundation. It is claimed on behalf of the attorney for the respondent that an affidavit of merits had been previously served in the course of the proceedings which have been taken in the action, but there is nothing in the affidavit upon which the order appealed from was made stating that to be the case. There was, therefore, a failure to comply with the requirements of Rule 23 of the General Rules of Practice. Although we are reluctant to reverse on mere questions of practice, yet orderly methods of procedure in accordance with established rules are of such importance that we feel constrained to correct any substantial departure from their requirements such as exists here. For the reasons which we have given, the order must be reversed and the proceeding remitted to the court below, but with leave to the defendant to renew his motion or to make such motion in the matter as he may be advised. It has beén the practice heretofore on the reversal of such orders to award costs at the rate of thirty dollars, the amount allowed by law on the reversal of a judgment. Colwell v. Devlin, 20 Misc. Rep. 616; Szerlip v. Baier, 21 id.692; Thomall v.Turner, 23 id. 363. But since these cases were decided the Appellate Division in the pec [632] ond department seems to have held that the costs to be allowed on such appeals should not exceed the sum of ten dollars and disbursements. Strassner v. Thompson, 40 App. Div. 28. We, therefore, feel bound to follow that decision, and to award costs accordingly. Order reversed, with ten dollars costs and disbursements, Avith leave to the defendant to renew his motion below, or to make such other motion in the matter as he may be advised.' Present: Beekman, P. J., Giegerich and O’Gorman, JJ. Order reversed, with ten dollors costs and disbursements, with leave to renew motion below or to make such other motion, as he may be advised.