Allen v. Fowler & Wells Co.
Appellate Division of the Supreme Court of the State of New York
Appeal by the defendant, Fowler & Wells Company, from an ■order of the Supreme Court, made at the New York Special Term .and entered in the office of the clerk of the county of New York •on the 18th day of October, 1899, opening the plaintiff’s default in failing to serve a reply, and allowing him a discovery and inspection ■of the books of the defendant.
1Opinion of the Court
Rumsey, J.:
This order must be reversed. It is a well-settled rule that when one, being in default for failure to serve a pleading, moves for leave to open the default, a copy of the proposed pleading must be annexed to the ■motion papers. ■ (Stern v. Knapp, 52 N. Y. Super. Ct. 14; Powers v. Trenor, 3 Hun, 3.) Not only did the plaintiff neglect to serve a *507-copy of liis proposed reply, hut is impracticable to ascertain from his •affidavit what the nature of that reply is. The motion, therefore, for leave to serve a reply should have been denied.
From an examination of the counterclaim in the…
2Cited by3 opinions
- Schumpp v. Interurban Street Railway Co.Appellate Division of the Supreme Court of the State of New York · 1903
- Reid v. Jackson's Baggage ExpressAppellate Terms of the Supreme Court of New York · 1907
- Maguire v. MaguireAppellate Division of the Supreme Court of the State of New York · 1902