There was no affidavit of merits made for the motion, accompanying the moving papers. Defendant relied upon the affidavit of merits made by the attorney, which was served with the plea.
Beardsley, Justice.Denied the motion, on the ground that there was not proper affidavit of merits, nor any excuse shown why one was no* made by Peck the defendant. The default was regular, and he would have let in the defendant, on terms, if proper affidavit had been made.
Motion denied with costs.