
    COGNATO v. FITZHENRY.
    (Supreme Court, Appellate Term.
    January 5, 1911.)
    Judgment (§ 161)—Default—Motion to Vacate—Proposed Answer.
    A motion to open a default, which occurred before joinder of issue, must be accompanied by a copy of the proposed answer.
    - [Ed. Note.—For other cases, see Judgment, Cent. Dig. §§ 317, 31S; Dec. Dig. § 161.*]
    Appeal from Municipal Court, Borough of Manhattan, Second District.
    Action by Anrelio Cognato against Charles J. Fitzhenry. From an order denying plaintiff’s motion to open his default, he appeals.
    Affirmed.
    Argued before GIEGERICH, BRADY, and GAVEGAN, JJ.
    Herman Kahn, for appellant.
    H. & H. S. Mendelsohn, for respondent.
    
      
       For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   GIEGERICH, J.

The defendant appeals from an order denying his motion to open his default. The order appealed from granted him leave to renew upon proper papers. The defendant • defaulted ■before joinder of issue, and upon the motion did not file either ,an affidavit of merits or a copy of his proposed answer, and evidently liis motion was denied for that reason, and properly. A copy of the proposed answer must be annexed to and served with the motion papers. Schumpp v. Int. St. Ry. Co., 81 App. Div. 576, 81 N. Y. Supp. 366; Meyer v. City of New York, 80 App. Div. 584, 80 N. Y. Supp, 774; Kuh v. Goldman, 119 App. Div. 148, 104 N. Y. Supp. 255; Reid v. Jackson’s Express, 107 N. Y. Supp. 633; Bloch v. Weinstein, 113 N. Y. Supp. 1067.

Order affirmed, with costs. All concur.  