This action was brought to recover damages alleged to have been sustained by plaintiffs assignors, *573by a. sale of merchandise made by them, which sale they were induced to make by the conspiracy, fraud, and deceit of the defendants. The action was tried once and resulted in a judgment in favor of the plaintiff, which' the Appellate Term reversed on the ground that the evidence did not show a sale induced by fraud; that, if any conspiracy was. shown, it, was between three of the parties defendants and one Jacob Adler, and also that improper testimony was admitted. The plaintiff entered upon a second trial and, after one day had been consumed in taking testimony, J acob Adler, above mentioned, was sworn as a witness by the plaintiff and refused to testify to several questions put to him by plaintiff’s counsel upon the ground that the answers thereto might tend to incriminate him. Plaintiff’s counsel thereupon asked the court for leave to withdraw a juror for the purpose of applying at Special Term for leave to make the witness a party defendant. The trial judge refused such permission unless the plaintiff would pay the costs of the trial and of the appeal. This plaintiff’s counsel refused to do and also refused to proceed further with the trial; whereupon the" court, upon motion of defendants’ attorney, dismissed the complaint, and judgment was entered in favor of the defendants for costs. Subsequently the plaintiff applied at a Special Term of the City Court for leave to open this so-called default, to be permitted to bring in an additional party defendant (said Jacob Adler) and to serve a proposed amended and supplemental complaint. This motion was granted upon payment of sixty-five dollars costs, and from the order granting such relief this appeal‘comes up. Upon the hearing of the motion it was shown, beyond contradiction or doubt, that, prior to the commencement of ■ the action, the plaintiff herein knew that, in the fraud and conspiracy alleged to have been perpetrated, Jacob Adler was the most active participator. •
In the assignment to the plaintiff of the cause of action it is stated that the claim “ arises out of an alleged purchase by said Ettie Adler, through her husband Jacob Adler, of certain goods, wares, and merchandise from us by certain false representations made to us and each of us *574by said Jacob Adler.” Under these circumstances, we think the plaintiff was clearly guilty of laches in making his application. The moving papers are also defective. The plaintiff strenuously contends that he had suffered a default and that the court had power to open such default and set aside the judgment. The moving affidavit is made by the plaintiff’s attorney, and not by the plaintiff himself; and not the slightest reason is shown why such affidavit is not made by. the plaintiff. Mutual Loan Assn. v. Lesser, 81 App. Div. 138.
Gildebsleeve and Dttgbo, J.T., concur.
Order reversed, with ten dollars costs and disbursements, and judgment reinstated.