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Fritz v. Farber

Supreme Court, Appellate Term, Second Department
Apr 1, 1958
11 Misc. 2d 485 (N.Y. App. Term 1958)

Opinion

April 1, 1958

Appeal from the Second District Court, Nassau County, JOHN DALY, J.

Jack Farber, in person, and Louis Diamond for Jack Farber, appellant.

John S. Thorp, Jr., for respondent.


Since there was no satisfactory excuse for the default and no showing of a meritorious defense, the motion to open the default was properly denied. Irrespective of whether a default occurs before or after joinder of issue, the party seeking to be relieved therefrom must show not only that the default was the result of mistake, inadvertence, surprise or excusable neglect but also that he has a meritorious cause of action or a meritorious defense. We are mindful of our former decisions to the effect that an affidavit of merits is not required when the default occurs after joinder of issue. The reasons originally assigned for this holding no longer obtain.

The judgment and order should be affirmed, with $10 costs.

PETTE, HART and DI GIOVANNA, JJ., concur.

Judgment and order affirmed, etc.


Summaries of

Fritz v. Farber

Supreme Court, Appellate Term, Second Department
Apr 1, 1958
11 Misc. 2d 485 (N.Y. App. Term 1958)
Case details for

Fritz v. Farber

Case Details

Full title:ANDREW R. FRITZ, Respondent, v. JACK FARBER, Appellant

Court:Supreme Court, Appellate Term, Second Department

Date published: Apr 1, 1958

Citations

11 Misc. 2d 485 (N.Y. App. Term 1958)
177 N.Y.S.2d 569

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