Chilion B. Allen, Respondent, v. Fowler & Wells Company, Appellant

Chilion B. Allen, Respondent, v. Fowler & Wells Company, Appellant. Motion to open a default — the proposed pleading should be annexed to the motion papers. ■On. a motion for leave to open a default in pleading, a copy of the proposed pleading must be annexed to the motion papers. "Where the moving party neglects to do this, and it is. impracticable to ascertain the nature of the proposed pleading from the moving papers, the motion is properly denied. Appeal by the defendant, Fowler & Wells Company, 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 18th day of October, 1899, opening the plaintiff’s default in failing to serve a reply, and allowing him a discovery and inspection ■of the books of the defendant. Samuel Keeler, for the appellant. Chilion B. Allen, for the respondent. [MAJORITY — Rumsey, J.:] Rumsey, J.: This order must be reversed. It is a well-settled rule that when one, being in default for failure to serve a pleading, moves for leave to open the default, a copy of the proposed pleading must be annexed to the ■motion papers. ■ (Stern v. Knapp, 52 N. Y. Super. Ct. 14; Powers v. Trenor, 3 Hun, 3.) Not only did the plaintiff neglect to serve a -copy of liis proposed reply, hut is impracticable to ascertain from his •affidavit what the nature of that reply is. The motion, therefore, for leave to serve a reply should have been denied. From an examination of the counterclaim in the answer, it is not possible to divine any reason why the discovery and inspection of the defendant’s books was necessary to enable the plaintiff to serve his reply. If the facts set up in his affidavit entitled the plaintiff to the discovery and inspection at all, it is for the purpose of enabling him to prepare for the trial, and such relief will not be given him for such a purpose until the case is at issue. In the most favorable view that can be. taken for the plaintiff, his application was premature. That, motion should have also been denied. The order at Special Term must, therefore, be reversed, .with ten •dollars costs and' disbursements, and the motion denied, with ten dollars costs. Van Brunt, B. J., Barrett, Ingraham and McLaughlin, JJ., •concurred. Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.