¶1I think this motion should he granted if made upon proper and sufficient papers. • The subject-matter of the present suit was undoubtedly included in and covered by the allegations of the complaint in the prior action although somewhat different relief is sought herein. Sufficient papers, however, are not presented upon this motion. ISTo answer has been served in the present case and there is no affidavit of merits or other affidavit indicating that defendant has a meritorious defense. Inasmuch as the granting of an application like this is more or less one of discretion some evidence should be presented of the merits of defendant’s position. This motion, therefore, is denied, with $10 costs to plaintiff to abide event, but without prejudice to the right of defendant to renew the motion if he is so advised.
¶2Motion denied, with $10 costs to abide event, but without prejudice to defendant to renew.