This is an appeal from an order made in an action in the Municipal Court denying defendants’ motion to open their default. The pleadings in the action are verified, and are made a part of the record on this appeal. The action was brought to recover for two months’ rent. The answer admits that the defendants have not paid the rent for the two months sued for, but allege as a defense that the premises were surrendered by them and accepted by the landlord. Formerly an appeal from such an order was not permissible (Beebe v. Nassau Show Case Co., 41 App. Div. 456, 58 N. Y. Supp. 769), but by section 257 of the New Municipal Court Act (Laws 1902, p. 1563, c. 580) it seems to have been provided for. The trial of the cause had been adjourned several times, and upon the last day set for trial the defendant again asked for an adjournment, which was refused. He then filed an affidavit setting forth that a material witness was sick and unable to attend, and, on the refusal of the court to adjourn, defaulted. Subsequently he made a motion to open such default.
If we assume that the affidavit which is made the basis of his application to open the default be sufficient, of which there is grave doubt, inasmuch as it fails to show any facts from which it can be said the testimony of the absent witness was or might be material
Order affirmed, with costs. All concur.