Weinberg v. Klauber , 107 N.Y.S. 578 ( 1907 )

PER CURIAM.

The defendant appeals from an order denying a motion to open his default. The moving papers are clearly defective, and the court below was justified in denying the motion. No answer appears in the record. It is claimed by the defendant that one was filed and lost by the clerk of the Municipal Court. The appellant should, in such a case, have procured the substitution of a copy. As the record appears before us, we have no way of determining as to whether or not the defendant has a defense to the cause of action set up in the complaint. Neither is there an affidavit of merits in the moving papers. These omissions are fatal.

Judgment and order affirmed, with costs, with leave to the defendant to renew the nfotion in the court below upon proper papers.