#### Barnett Gold, Appellant, *v.*George H. Hutchinson, Respondent.

(Supreme Court, Appellate Term,

January, 1899.)

1. Municipal Court of New York — Order opening default.

An order opening a default in the Municipal Court of the city of New York must state the grounds upon which it was granted, as the statute requires it

*2.*Affidavit of merits.

An affidavit of merits, used on such a motion and stating that “ as deponent (defenuant) is advised hy his counsel * * * the said defendant had a good and sufficient defense, upon the merits, to said action for conversion ”, is an insufficient compliance with Rule 23 of the General Rules of Practice.

Appeal hy plaintiff from an order made by one of the justices of the Municipal Court of the city of New York, sitting in the borough of Manhattan, fifth district, opening the defendant’s default.

Samuel I. Frankenstein, for appellant.

Thomas J. Malloy, for respondent.

Giegerich, J.

The order opening the defendant’s default is assailed, because (1) it does not recite and contain the grounds upon which it was granted; (2) that the motion papers presented *2to the justice below fail to disclose a sufficient affidavit of merits, and (3) that they fail to show a satisfactory excuse for the default.

The power to open a default and set aside a judgment entered thereon in the Municipal Court is purely statutory, and it must appear from the order that the statute has been complied with. And we must hold that for a failure to meet this condition the order in question is fatally defective. Colwell v. Devlin, 20 Misc. Rep. 355; Thornall v. Turner, 23 id. 363.

One condition essential to the granting of an order opening a default is that an affidavit of merits must be filed and served, or if this has already been done, that proof thereof be made upon the motion. Thornall v. Turner, 23 Misc. Rep. 363. The moving affidavit of the defendant contains the only reference to what seems to have been intended as an affidavit of merits, and, so far, the allegation is: “ That as deponent is advised by his counsel, T. J. Malloy, of the borough of Brooklyn, the said defendant had a good and sufficient defense, upon the merits, to said action for conversion.” This is insufficient, because it fails to state in conformity with the requirements of Rule 23 of the General Rules of Practice, that the defendant “has fully and fairly stated the case to his counsel,” and such affidavit is also defective, because it omits to allege that the defendant “ has a good and substantial defense on the merits in this cause,” etc. State Bank of Syracuse v. Gill, 23 Hun, 406. See 1 Ency. of Forms, 672, 673; 2 Abb. Forms, 692.

The following averments have been held not to be a compliance with the rule and practice last set forth, viz.: “ That the defendant has a good and substantial defense *to the bond ”*(Meech v. Calkins, 4 Hill, 434); “ that they have a good and substantial defense upon the merits in the above-entitled cause *to the promissory note*on which the action is brought,” etc. (Durant v. Cook, 1 How. Pr. 45); “ that he has a good, valid and sufficient defense upon the merits in the above-entitled cause *to the plaintiff’s !declaration filed in this suit ”*(Howe v. Hasbrouck, 1 How. Pr. 68); “ that the said defendants have a good and substantial *defense upon the merits to the plaintiff’s demand on the promissory note,*on which this action is brought ” (Mason v. Moore, 2 How. Pr. 70); that “ each of the defendants had a good and valid defense to the whole of the plaintiff’s *claim as set forth in said complaint*upon the merits *thereof,”*etc., and that the defendant Mrs. Gill *3has a *“*valid defense upon the merits to the whole of plaintiff’s *claim*herein,” etc. State Bank of Syracuse v. Gill, *supra.*

Testing the sufficiency of that portion of the affidavit under review in the light of the foregoing rule and adjudications, it must be held that the same is wholly insufficient.

The explanation given by the defendant for his failure to appear upon the return of the summons was, to my mind, satisfactory, and in view of his poverty, there was no abuse of discretion in opening the default without terms.

It results from the views above expressed that the order must be reversed, with costs, and the proceedings remitted to the court below for further hearing to be brought on upon at least five days’ notice, with leave to serve an affidavit of merits.

Beekman, P. J., and Gildersleeve, J., concur.

Order reversed, with costs and proceedings remitted to court below for further hearing to be brought upon at least five days’ notice, with leave to serve affidavit of merits.