#### C. E. Malm and L. M. Malm, Defendants in Error, v. Harry I. Schwimmer, Plaintiff in Error.

Gen. No. 21,766.

(Not to he reported in full.)

Error to the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.

Reversed and remanded.

Opinion filed May 29, 1917.

Statement of the Case.

Action by G. E. Malm and L. M. Malm, plaintiffs, against Harry I. Schwimmer, defendant, on a lease. There was a judgment by confession whereupon defendant moved to set it aside and for permission to appear and defend on the merits. To reverse an order denying this motion, defendant prosecutes this writ of error.

*585Abstract of the Decision.

Landlord and tenant, § 330 * —when affidavit of defense in support of motion to set aside judgment 5y confession on tease is sufficient. Where the purport of the facts set forth in an affidavit in support of a motion to set aside a judgment entered by confession on a lease and to be permitted to appear and defend on the merits is that the parties intended that the lease should not take effect on its delivery, but that the delivery was .conditional upon the doing of something by the lessors before it should take effect, such affidavit tends to show a good defense which the court should have permitted defendant to present.

William Gillespie, for plaintiff in error.

No appearance for defendants in error.

*

See Illinois Notes Digest, Vols, XI to XYi &nd Cumulative Quarterly, same topic and section number.

Mr. Presiding Justice Barnes

delivered the opinion of the court.