(dissenting). The principal questions here presented are whether or not the case was properly noticed for trial at Kingston, on December 2, 1938, in the first place, and if it had not been so properly noticed, whether or not the appellant’s attorneys waived objections to proceeding at that time or estopped themselves in regard thereto. If either question is decided in the affirmative, there can be no basis for the opening of the default.
The questions arising from the original action were referred to a referee by an order of the Special Term from which an appeal was taken to this court. Upon the date of argument of the appeal, November 15, 1938, the appellant herein, through his attorneys, consented in open court to a reversal of the original order. Thereupon, that same day the special guardian for the respondent Maude S. Hilton and the attorney for the respondent Madeline S. Gaston served notes of issue for trial at the Special Term to be held at Kingston on December second on all other parties. The attorneys for the appellant, however, promptly returned the note of issue served upon them with the notation that the order of reference “ has up to this time not been reversed or set aside.” In this connection it should be noted that Ernest B. Morris, Esq., one of appellant’s attorneys, was present at the argument before this court and personally consented to the reversal of the order of reference.
Later, on November 26, 1938, appellant’s counsel served a “ Notice to Produce ” requiring the defendant trustees to have certain papers and documents at Kingston on December 2, 1938. Despite this, however, appellant’s counsel wrote a letter to the justice who was to sit at Kingston on December second, stating that because of the pressure of business and for other reasons they would not be able to try the case on the fixed date. This letter was sent December first. On December second appellant’s attorneys were not represented at Kingston and judgment by default in favor of the respondents was entered. It is the denial of the motion to open this default that is the subject of the present appeal.
From these facts it is manifest that certain arguments raised by the appellant are not well founded. It seems clear that when the appellant consented to the reversal of the order of reference and the court through the presiding justice stated that the order accordingly would be reversed, the appellant’s attorneys were not justified in returning the note of issue on the ground that the order had not been reversed. They had consented to a reversal and the reversal obviously followed as a matter of course. Thus, the *714way was clear for any party to the action to note the case for a speedy trial. , Therefore, the noticing of the matter for trial at Kingston on December second, was a proper procedure and no objection now lies with the appellant to the judgment which followed his default. In view of the actual knowledge of the parties, the formal entry of the order of reversal is immaterial.
However, even if it be held by tortuous straining of the facts and the law that the case had not been properly noticed for trial, it would be necessary to hold that the appellant, through his attorneys, has estopped himself from opposing the default judgment at this time. In the first place, appellant consented to the reversal of the order of reference. His attorneys certainly were well aware of the reversal on November fifteenth, regardless of any technical question of the actual entry of the order of reversal. Appellant’s consent to this reversal, therefore, now estops him from questioning the note of issue and the subsequent results thereof, all of which occurrences flowed naturally from the reversal of the order of reference. Likewise, the appellant’s action in serving the “ Notice to Produce,” returnable at Kingston on December second, clearly was a waiver of his objections to proceeding to trial there on that date. Therefore, even if the service of the note of issue be deemed invalid, it is manifest that appellant has both estopped himself from moving to open the default and has waived his objections to the proceedings which took place on December second at Kingston. Upon either theory, of course, the orders of the Special Term denying motions to reopen the default were proper and should be sustained.
It must also be found that aside from the merits, there is sufficient authority to sustain the Special Term on the ground that the moving papers contain nothing to indicate that the plaintiff has a meritorious cause of action. A recital to this effect in the moving affidavit has always been held necessary. (Fitzgerald Mfg. Co. v. Alexander, 200 App. Div. 164; appeal dismissed, 234 N. Y. 608.)
In similar manner, where it appears that a default is deliberate, it cannot be opened. (See Murphy v. Rose, 218 App. Div. 751.) The facts here indicate that this default was deliberate and the moving papers contain nothing to contradict' this theory. This, likewise, would seem to be a sufficient ground upon which to sustain the Special Term.
The orders appealed from should be affirmed on the law and on the facts, with ten dollars costs and disbursements, and plaintiff’s motion denied.
Orders appealed from reversed, on the law and facts, with ten dollars costs and disbursements, and plaintiff’s motion granted.