Brooklyn Finnish Socialist Club v. LillbaŒk

217 A.D. 772

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 15, 1926
• Status: Published

Opinion

Order denying defendant’s motion to open his default in answering and to vacate judgment entered upon such default, reversed upon the law and the facts, without costs, and said motion granted, upon condition that defendant, appellant, within ten days after entry and service of order on this decision pay to plaintiff’s attorney taxable costs to date, and also file with the clerk an undertaking with corporate surety in the sum of, $2,500, conditioned for the payment of any judgment which may be obtained against him by plaintiff in this action, .and also within the time aforesaid serve the answer attached to the moving“papers duly verified; in default of compliance with these conditions the order appealed from is affirmed, with ten dollars costs and disbursements. We hesitate to interfere with the discretion of the learried justice at Special Term, but in the interests of justice, in view of plaintiff’s delay of nearly eight years in entering judgment for damages in this libel action upon the default which occurred in February, 1917, and the apparent mistake of appellant in relying upon the action of his codefendants, we think the defendant should be allowed to come in and defend the action, upon the terms indicated. Kelly, P. J., Rich, Jayeox, Kapper and Lazansky, JJ., concur.