#### Empire City Iron Works, Respondent, *v.*Isaac Dincin and Philip Dincin, Appellants.

(Supreme Court, Appellate Term,

November, 1911.)

Municipal Courts: Procedure — Relief from default — Sufficiency of papers: Review — Judgments and orders reviewable.— Judgment by default.

An appeal will not lie from a judgment of the Municipal Court of the city of New York entered upon default.

Where a defendant moves to open a judgment taken by default the facts upon which he relies as constituting a defense must be stated in the moving papers; and an affidavit of merits or a verified answer and the sworn statement of counsel that defendant has a good and sufficient defense upon the merits are not sufficient.

Appeal by the defendants from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of ¡New York, borough of Manhattan, third district, and from an order denying defendants’ motion to open their default.

Albert S. Goldberg, for appellants.

Earl A. Bowman, for respondent.

Cohalan, J.

The plaintiff herein furnished materials and performed certain labor in fitting up a restaurant for the defendants. Suit was brought to recover the balance of the alleged agreed price. Upon the day set for trial, the defendants applied for an adjournment which was refused, and thereupon the plaintiff took an inquest. Thereafter, the defendants moved for an order opening their default and vacating the judgment. This motion was-denied, and the defendants appeal from the judgment and from the order.

An appeal from a judgment by default will not. lie, and that appeal'must be dismissed.

The decisions are uniform and to the effect that, where a defendant moves to open a judgment by default, the *facts*
      *86upon which the defendant relies, as constituting a defense, must be stated in the moving papers; and, further, that an affidavit of merits, or a verified answer, and the sworn statement of counsel that defendant has a good and sufficient defense upon the merits, do not suffice where the papers do not set forth the defense. Dana v. Thaw, 109 N. Y. Supp. 826; 107 id. 870; affd., 112 id. 1126.

The affidavit of merits is defective in many respects, and the moving affidavits utterly fail to set forth a single material fact to which it is alleged the absent witnesses will testify. The defendants’ attorney states in his affidavit that the absent witness Sheinart was present when the contract between the parties was made, and that he is the only witness by .whom he can prove the terms of the contract, and that he expects to prove by him that the contract was not performed. Whether or not there is any issue as to the terms of the contract, or in what' respect it was not performed, is not stated. Sheinart himself says, “ that he is fully acquainted will all the circumstances and facts concerning this matter and is a necessary witness in -said case.” It will be seen that there is an entire absence of anything tending to show what testimony the absent witnesses would give, so as to enable the court to determine whether or not such testimony is material "and germane to the issue.

The order’ must be affirmed. Appeal from judgment dismissed.

Sbabury and Gtty, JJ., concur.

Order affirmed.