WEEKS, J.
[1] The default of defendant having been taken after the presentation of an affidavit showing actual engagement of counsel in the United States District Court, Eastern District, the imposition of terms was unwarranted. Gotham Raincoat Co. v. Levey (Sup.) 149 N. Y. Supp. 482; Solomon v. Sultan Flore Cigarette Co. (Sup.) 153 N. Y. Supp. 947; Goldstein v. Frumkes, 74 Misc. Rep. 450, 132 N. Y. Supp. 318; Wadler v. Karpel, 78 Misc. Rep. 376, 138 N. Y. Supp. 367; Wolff v. Stern (Sup.) 149 N. Y. Supp. 908.
[2] As appellant upon his brief expresses his willingness, however, to take the deposition of plaintiff, that condition of the order will be allowed to remain.
The order should be modified, by striking therefrom the conditions of the payment of costs and the deposit of the amount of the judgment with the clerk as security, and, as so modified, affirmed, with $10 costs to appellant. All concur.
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