
    John Christal, Respondent, v. Fifty-Five Columbus Corp., Appellant.
    Supreme Court, Appellate Term, First Department,
    May 20, 1938.
    
      Francis J. Purdue [Jack Teck of counsel], for the appellant.
    
      O’Malley & Wilson [Nicholas P. Callaghan of counsel], for the respondent.
   Per Curiam.

Although no legal excuse was offered for the default suffered by the defendant on the return day of the motion for summary judgment, the judgment must be vacated as it is not based upon the affidavit of one having personal knowledge of the facts as required by rule 113 of the Rules of Civil Practice.

Orders reversed, and motions to open default and vacate judgment granted, with leave to plaintiff to move de novo for summary judgment.

All concur. Present — Hammer, Shientag and Noonan, JJ.  