McConnin v. Bedell

Order denying plaintiff’s motion to set aside dismissal of complaint and open default reversed upon the law and the facts, with'ten dollars costs and disbursements, and motion granted, without costs. No affidavits having been submitted to the Trial Term justice when the order was made dismissing the complaint, it was proper to move at Special Term to set aside the dismissal. In our opinion the dismissal of the complaint under the circumstances shown was unwarranted. The question of whether or not plaintiff’s action is meritorious, and whether there was an accord and satisfaction, must be determined at a trial. Lazansky, P. J., Young, Kapper, Scudder and Davis, JJ., concur.