Without passing upon the sufficiency of the order, accompanied, as it is, by a statement of the justice’s reasons for granting the same, the order must, nevertheless, be reversed, because of. the omission to present, an affidavit of merits. Thornall v. Turner, ante, p. 363.
The counsel for the defendant is in error as to the statement contained in his brief, that the order was filed on the 11th day of January, 1898.- An examination of the return, on the contrary, shows that it was filed on the 10th day of January, 1898) the date mentioned in the notice.of appeal." The order should, therefore, be reversed, with costs, and the motion remitted, toi the court below for further hearing, to be brought on,, upon at least five days’ notice, with leave to the defendant to file and serve an affidavit gf merits.
Beekmakt, P. J., and Gildebsleeve, J., concur.
Order-reversed, with costs, and motion remitted to court below-for further hearing, upon at least five days’ notice,' with leave to defendant to file and serve an affidavit of merits.