Epstein v. Kutner

38 A.D.2d 750, 329 N.Y.S.2d 677, 1972 N.Y. App. Div. LEXIS 5480

Opinion

In an action to recover money damages and personal property upon various causes of action, including fraud and conversion, defendant appeals from an order of the Supreme Court, Kings County, dated June 25, 1971, which granted Ms motion to open his default on the trial and to restore the ease to the Trial Calendar, upon certain conditions. Order modified by striking therefrom subparagraph “2” of the first decretal paragraph, namely, the condition that $50,000 or a surety bond be deposited in court, and by adding thereto a provision that the default judgment shall stand as security. As so modified, order affirmed, without costs. In our opinion, imposition of the condition which is hereby stricken was an improvident exercise of discretion. This case should be tried without delay. Hopkins, Acting P. J., Grulotta, Christ, Brennan and Benjamin, JJ., concur.