Becker v. Sidweber

237 A.D. 909

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 15, 1933
• Status: Published

Opinion

Order of the County Court of Rockland county reversed on the law and the facts, with ten dollars costs and disbursements, and defendant’s default opened and the judgment entered thereon vacated, upon payment to the plaintiff of ten dollars motion costs. In our opinion, the defendant’s default was excusable because of his serious illness, his absence from Rockland county and his confinement in a sanatorium at the time the cause was reached for trial. Young, Kapper, Hagarty and Tompkins, JJ., concur; Davis, J., concurs for reversal in the exercise of discretion, but on condition that the defendant stipulate that the cause of action shall not abate, it being doubtful that the plaintiff will ever be able to bring the cause to trial during the lifetime of the defendant, against the objection of the party undertaking the defense; and that the evident purpose is one of delay to the end that plaintiff will be deprived of his remedy.