Sheehan

Defendant appeals from an order of the superior court setting aside a judgment of dismissal of plaintiff’s action. A demurrer to the second amended complaint was sustained with leave to amend within ten days. Upon the failure of plaintiff to amend within the time allowed a judgment of dismissal was entered upon application of defendant. A motion to set aside the judgment of dismissal was made under section 473 of the Code of Civil Procedure and granted by the court.

Plaintiff presented for filing his verified third amended complaint and relied upon this pleading for a showing of merit. Counsel for defendant do not contend that a sufficient showing was not made to excuse the failure of plaintiff to amend within ten days. Neither do they contend that a verified amended complaint may not serve as a sufficient showing of merit. Counsel for defendant contend, however, that the third amended complaint does not set forth facts sufficient to entitle plaintiff to judgment. They also assert that certain statements made by plaintiff upon the taking of his deposition are contradictory of allegations made in his third amended complaint. Upon these grounds they ask this • court to rule that…