
    Arthur Horwitz, Appellant, v. A. Beth Gardner, Respondent.
   Order reversed, with $10 costs and disbursements to the appellant, and the motion denied. The moving papers contain no factual showing that the defendant has a meritorious defense and no proposed answer is submitted. The defendant may not excuse such failure by alleging that the complaint has not been served upon her. This was so because she had not appeared. At the time the application was made the verified complaint was on file in the County Clerk’s office. Present — Peek, P. J., Dore, Breitel, Bastow and Bergan, JJ.; Dore and Bergan, JJ., dissent and vote to affirm in the following memorandum: Where no complaint is served with the summons and the parties immediately enter into negotiations for settlement which are abortive, Special Term is within a reasonable range of discretion in opening defendant’s default in appearance and vacating a judgment entered on that default. The judgment here was entered after almost two months of negotiations had failed to effect a settlement. That defendant’s affidavit in the moving papers is general, could have been excused by Special Term on the ground that the complaint was not served at any time on defendant, and is not made a part of the record by plaintiff, even in opposition to this motion. The action is merely described in general terms in an affidavit by plaintiff’s attorney which states what it is based on ”. The order appealed from allows the judgment for $17,590.42 to stand as security pending final determination on the merits. If there is no substantial defense shown when issue is joined, plaintiff has an expeditious remedy available; but the reasonable arrangements made by Special Term to open the default suffered while negotiations were pending ought not to be lightly disturbed on appeal. In the light of all the circumstances disclosed, Special Term did not abuse its discretion and the order appealed from should be affirmed.  