Brinklit Realty Corp. v. Accord Realty Co.

228 A.D. 830

Opinion

Order denying motion to vacate and set aside judgment dismissing plaintiff’s complaint and vacating and dissolving tho injunction, to restore case to calendar' and to perndt Indemnity Insurance Company of North America to intervene, reversed upon the law and the facts, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, upon condition that said Indemnity Insurance Company pay the costs as taxed upon the entry of the judgment; otherwise, order affirmed, with ten dollars costs and disbursements to respondents jointly. The trial to determine whether or not, despite the judgment heretofore entered against the plaintiff by default, from which the plaintiff is now precluded from appealing, the plaintiff was in fact entitled to the injunction dissolved by the default judgment, and hence whether or not Indemnity Insurance Company of North America is hable to defendants in damages upon its bond. We feel that this case presents a situation in which the motion of the Indemnity Insurance Company of North America should have been granted in the interests of substantial justice. The denial of the motion in the situation disclosed was not a proper exercise of discretion. Hagarty, Cars-well, Seudder and Tompkins, JJ., concur; Lazansky, P. J., dissents.