Friedland v. Commonwealth Fire Insurance Co. of Ottumwa

Appellate Division of the Supreme Court of New York

Friedland v. Commonwealth Fire Insurance Co. of Ottumwa

136 A.D. 6, 120 N.Y.S. 126, 1909 N.Y. App. Div. LEXIS 4251

Appellate Division of the Supreme Court of the State of New York·Decided December 30, 1909·Published·Cited by 2 cases

Opinion

Jenks, J.:

This is an appeal from an order of the' Special Term that opens a .default in service of an answer. As the learned Special Term did not impose any terms, we may conclude that it opened the default as a matter of right. (Cohen v. Meryash, 93 N. Y. Supp. 529.) This was error, -inasmuch as the defendant relied upon a verbal stipulation extending its time, which the plaintiff deposes was not given. If it had been made it could not be enforced against the protest of the other party. (Gen. Rules Pr. rule 11 ; Bradford v. Downs, 25 App. Div. 581.) The court then feould have opened this default only as a matter of favor, and we think that it did not act within its discretion when it failed to impose any terms whatever upon the moving party. (See Shenstone v. Wilson, 117 App. Div. 752; Cohen v. Meryash, supra.)

The order is reversed, with ten dollars costs and disbursements, [7] and the motion is denied, with costs; without prejudice to the defendant to make a timely motion to open its default as a matter of favor.

Hirschbero, P. J.,- Woodward, Thomas and Miller, JJ., concurred. •

Order reversed, with ten dollars costs and disbursements, and motion denied, with costs, without prejudice to the defendant to make a timely motion to open its default as a matter of favor:

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Jenks, J.:

This is an appeal from an order of the' Special Term that opens a .default in service of an answer. As the learned Special Term did not impose any terms, we may conclude that it opened the default as a matter of right. (Cohen v. Meryash, 93 N. Y. Supp. 529.) This was error, -inasmuch as the defendant relied upon a verbal stipulation extending its time, which the plaintiff deposes was not given. If it had been made it could not be enforced against the protest of the other party. (Gen. Rules Pr. rule 11 ; Bradford v. Downs, 25 App. Div. 581.) The court then feould have opened this default only as a matter of favor, and we think that it did not act within its discretion when it failed to impose any terms whatever upon the moving party. (See Shenstone v. Wilson, 117 App. Div. 752; Cohen v. Meryash, supra.)

The order is reversed, with ten dollars costs and disbursements, [7] and the motion is denied, with costs; without prejudice to the defendant to make a timely motion to open its default as a matter of favor.

Hirschbero, P. J.,- Woodward, Thomas and Miller, JJ., concurred. •

Order reversed, with ten dollars costs and disbursements, and motion denied, with costs, without prejudice to the defendant to make a timely motion to open its default as a matter of favor:

Friedland v. Commonwealth Fire Insurance Co. of Ottumwa, 136 A.D. 6, 120 N.Y.S. 126, 1909 N.Y. App. Div. LEXIS 4251 (N.Y. Ct. App. 1909).

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