Estley Rothschild, an Infant, by Lylian H. Rothschild, His Guardian Ad Litem, Appellant, v. Clayton A. Haviland, Respondent

Estley Rothschild, an Infant, by Lylian H. Rothschild, His Guardian Ad Litem, Appellant, v. Clayton A. Haviland, Respondent. First Department, May 5, 1916. Practice — failure to answer — opening default — facts showing meritorious defense essential — rule 23. A defendant’s motion to open his default in failing to answer should not be granted upon a formal affidavit of merits which does not state facts; there must be a compliance with rule 23 of the General Rules of Practice, which require a statement of facts establishing a meritorious defense. Appeal by the plaintiff, Estley Rothschild, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 15th day of February, 1916, granting defendant’s motion to open his default and permit him to serve an answer. Henry O. Neuwirth, for the appellant. William H. Smith, Jr., for the respondent. [MAJORITY — Page, J.:] Page, J.: The affidavit of the defendant upon which the motion is based contains a formal affidavit of merits, but does not state any facts showing merits and the good faith of the defense as required by rule 23 of the General Rules, of Practice. It has been repeatedly held that a defendant applying to a court for an order opening his default must show as a condition precedent to the granting of the relief facts establishing a meritorious defense, and an affidavit of merits alone is not sufficient. (Heischober v. Polishook, 152 App. Div. 193, 195; Clews v. Peper, 112 id. 430.) The favor of the court should be extended upon ^proper terms when the litigant who has a meritorious cause of action or defense has through inadvertence or neglect lost his right to have his day in court. The favor should be withheld when it is not shown that there is a meritorious controversy, for the courts should not be burdened with unfounded claims to relief nor should a just cause be delayed by the interposition of an unwarranted defense. Insistence on the observance of the rule makes for the orderly administration of justice, and is not the enforcement of a mere technical rule of practice. The order is reversed, with ten dollars costs and disbursements, the motion denied, with ten dollars costs, without prejudice to a renewal of the motion upon proper papers and on payment of costs. Clarke, P. J., McLaughlin, Laughlin and Smith, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, without prejudice to renewal on proper papers and on payment of costs.