On the day set for the trial of this case the defendant appeared in court with his witnesses. His attorney was absent and an inquest was taken. Upon the motion made to open the default, the attorney testified that he was unusually delayed, owing to the congestion of the traffic over the Brooklyn Bridge, and could only reach the courtroom at about 9:30 a. m., at which time the inquest had already been taken. A verified answer had already been interposed, and an affidavit of merits was submitted. The answering affidavit does not dispute the foregoing statement, and makes no claim that the defendant was unduly delaying the trial of the case. It merely attacks the merits of the defendant’s defense, which can best be determined after a trial. The default should be opened.
Order reversed, judgment vacated, and case set down for trial on the 10th day of June, 1912, with costs to abide the event.