
    NEW YORK SUPERIOR COURT.
    Henry Prouse Cooper & Company agt. Alexander D. Findlay.
    
      Affidavit of m&nts — Merits of the application — Default—Affidavit of merits • is not always sufficient — When absolute refusal to open justified.
    
    On a motion to open a default an affidavit of merits is not always sufficient. An absolute refusal to open an inquest may be justified.
    Tbe party moving to open tbe default must state tbe grounds of bis-motion clearly, and under certain circumstances must meet tbe opposing, affidavit.
    
      General Term,
    April, 1886.
    Appeal from an order denying a motion to open a default.
    The appellant had moved at special term to open a judgment. taken by default at trial term for $4,321. The motion was based on an affidavit and an affidavit of merits. The opposing affidavits put in by the plaintiff claimed that the defendant had admitted the embezzlement alleged in the pleadings, and that his counsel made a similar admission, and the said affidavits stated other grounds against granting the favor asked for. At special term the court denied the motion on the ground that “no merits had been disclosed.”
    
      John Lindley and Sutherland Tenney for appellant
    The default occurred through a mistake of the attorney.. Tbe court never goes into tbe merits of a case wben a verified answer and an affidavit of merits bas been served.
    
      W. Q-. Peckham and M W. Tyler for respondent.
    Probably judge Freedman’s memorandum meant “ no merits ” in tbe application as on tbe papers submitted. Several cases bold that under tbe circumstances tbe defendant should be required to sbow specific merits {Dix agt. Palmer, 5 Hun, 233; Security Bank agt. Bank of Commonwealth, 2 id., 287; Hunt agt. Wallace, 6 Paige, 372). Defendants lacbes is against tbe motion (Melvine agt Maihewson, 5 Law Bul., 51).
   Per Curiam.

Tbe discretion of tbe judge was properly' used. It would not bave been proper to have opened tbe default. Tbe statements as to tbe reason for tbe defendant not appearing are vague and indefinite, and tbe affidavit of merits was more than counterbalanced by tbe plaintiff’s affidavits. Tbe affidavit of merits would be true if tbe plaintiff bad made an insignificant error in bis demand.

Order affirmedj with ten dollars costs.  