
    Johh Felix, Appellant, v. Louis M. Josephthal, Walter C. Louchheim and Harry S. Kahn, Doing Business Under the Firm Name and Style of Josephthal, Louchheim & Co., Respondents.
    (Supreme Court, Appellate Term, First Department,
    April, 1912.)
    Pleading — motions relating to pleadings — motion for judgment on the -pleadings — judgment on the pleadings in general — answer. Default — opening default—■ power or authority to open — imposing costs or security therefor.
    Where an answer was returned within twenty-four hours after service thereof, and no verified answer or demurrer was served the next day, plaintiff is within his rights in entering judgment by default and issuing an execution.
    A plaintiff, for the purpose of a motion, has a right to rely on the correctness of the copy of an answer served on him.
    The court, in its discretion, may open a default and permit the defendant to serve an answer on just and proper terms, but the imposition of costs on plaintiff herein is erroneous.
    Appeal by plaintiff from an order of the City Court of the city of ¡New York, vacating a judgment in favor of plaintiff.
    John J. Lordan, for appellant.
    Einstein, Townsend & Guiterman (G. B. Townsend and S. G. Nissenson, of counsel), for respondents.
   Guy, J.

The summons and complaint herein were served on J anuary sixteenth. On the afternoon of J anuary twenty-second, defendants served a copy of an unverified answer, which was returned within twenty-four hours. The next day, no copy of a verified answer or demurrer having been served in time, the plaintiff entered judgment by default. The motion to vacate the judgment was granted, not as matter of discretion, but on the following ground: Sharp practice was attempted in this proceeding,. and the result is the biter is bitten. An answer having been served within time and having been returned for want of a copy of the verification, the plaintiff was bound to wait a reasonable time in order to permit the defendants to correct the defect pointed out, and at least twenty-four hours for that purpose should be allowed as a reasonable time. Instead of so doing, plaintiff proceeded to enter judgment and issue execution.”

It-is claimed that the original answer was in fact verified, although it is admitted that the copy served did not purport to be verified. The opposing party has, however, the right to rely on the correctness of the copy served upon him for the purpose of a motion. Klenert v. Iba, 17 Misc. Rep. 69; Guarino v. Fireman’s Ins. Co., 44 id. 218; McCarron v. Cahill, 15 Abb. N. C. 282; Trowbridge v. Didier, 4 Duer, 448; Welsbach Commercial Co. v. Popper, 59 N. Y. Supp. 1016; 31 Cyc. 596. Otherwise a defendant having a dilatory or unmeritorious defense could serve a copy of an unverified answer and thus extend the time to plead by vacating the judgment entered thereon under the plea that he was not bound to serve a correct copy or even alter the original answer by filling in a verification thereon, and dat-' ing it under the date when it should have been served.

Plaintiff was within his rights in entering judgment by . default, and also in having execution issued thereon. The court below, however, had power, in its discretion, to open the default and to permit defendants to answer on terms that were just and proper. The imposing of costs upon the plaintiff in the granting of the motion was clearly erroneous. Defendants should have been compelled to pay the ten dollars costs of motion, and all disbursements, including sheriff’s fees, incidental to the entry of judgment and the issuing of execution thereunder..

The order must, therefore, be modified so as to provide that the motion is granted upon payment by defendants to plaintiff of ten dollars costs and the sheriff’s fees, $164.93, and, as so modified, affirmed, without costs of this appeal to either party.

Seabuby and Gebaed, JJ., concur.

Order modified and, as so modified, affirmed, without costs  