
    Frank W. Slade, Appellant, v. The Delaware and Hudson Company, Respondent.
    Third Department,
    November 13, 1907.
    Practice — failure to answer — opening default.'
    On an application for. an'inquest after the defendant’s default in pleading, the court is without power to allow the defendant to serve an answer within ten days if there has been no notice of motion to open the default and there are no affidavits stating facts upon which such.ordercould.be made, and the plaintiff has not waived his right to' a formal motion.
    Under such circumstances the plaintiff will not be required to accept the answer tendered, even though a motion. upon affidavits be made to compel him to do so. ',
    Kellogg, J., dissented.
    Appeal by the plaintiff, Frank W. Slade, from an order of the Supreme Court, made at the Saratoga Special Term and entered in the office of the clerk of the county of Saratoga, on’ the 12th day of March, 1907, requiring the. plaintiff to receive .the answer of the defendant.
    The action is in ejectment. The complaint alleges that the defendant has unlawfully entered upon a portion of his land,, and is occupying the same without right, and asks that it be ejected from the same. The land in question constitutes a right of way, which is occupied' by the defendant for a trolley road in the town of Sara-toga. A strip of land adjoining the land in controversy was purchased by the defendant of the plaintiff, and the land in question is included in a.deed from the owner of land adjoining the same upon the other side from that upon which is situated the land deeded to the defendant by the plaintiff. An option was. obtained by the defendant upon the land which was afterwards deeded by the plaintiff. When the deed was presented to plaintiff to sign under that option, it seems that it included this land, which was not, however, included in the option. This deed the plaintiff refused to sign. It is claimed by the defendant that the plaintiff stated that the land was owned by a Miss Hodges, who was the owner of adjoining land, and in whose deed to.the plaintiff this piece of land is included. The claim of the plaintiff, however, is that no such representation was made, but that the plaintiff refused to sign the deed upon the ground that this piece of land was not included in the option.
    After the .commencement of the action and the service of the complaint, the defendant defaulted in answering. There were some negotiations between the parties. Finally at a Trial Term, when the plaintiff insisted upon an inquest, some conversation was had before the judge, who put the case over the term, and authorized the defendant to serve its answer within ten days. This authority was orally given, and was not entered upon the minutes of the court, or included in any order thereafter entered. The defendant tendered an answer within the ten days, which was refused by the plaintiff, upon the ground that it was too late. Thereafter a motion was made to require the plaintiff to receive this answer. Upon this motion the facts hereinbefore stated appeared by affidavit, and an order was made that the plaintiff be required to receive the answer of the defendant which was served.
    
      Fred B. Bradley, for the appellant.
    
      Lewis E. Carr, for the respondent.
   Smith, P. J.:

Whether or not the court might have made ah order opening defendant’s default without terms, no such order has been made. The order in fact made required the plaintiff to accept the defend" ant’s answer, thus assuming a right to serve the same when it was tendéred. This assumption, we think, was erroneously made. At the Trial Term when the trial justice made the oral order authorizing the defendant to serve its answer within ten days, no application had been made therefor, no notice of motion served and no affidavit stating facts upon which such an order could be made. Uor does, it appear that the plaintiff in any way waived these requirements to the granting of an order relieving the defendant from its default.

Upon the claim of the defendant as to what representation was made when the original deed was offered to tire plaintiff to sign, the plaintiff had the right to be heard upon affidavit in answer thereto. The matter could not be summarily determined upon the statement of counsel simply, unless the waiver by plaintiff’s attorney, of the formalities required in the malting of motions for relief from Default be clearly shown: We are of the opinion, therefore, that the defendant can only have relief upon a formal application to open its default, and that, the order made should be reversed.

The -order should be reversed, with ten. dollars "costs and. disbursements, and motion denied, without costs.

All’ concurred, except Kellogg, J., dissenting.

Order • reversed, with ten dollars costs and disbursements, and motion denied, without costs. ’ ■  