Gallo v. Bubbley

20 A.D.2d 519, 244 N.Y.S.2d 628, 1963 N.Y. App. Div. LEXIS 2782

Opinion

Order, entered on April 17,1963, unanimously modified, on the law and on the facts, to eliminate requirement that plaintiff file an undertaking in the sum of $25,000 as a condition to vacating a default judgment entered on the counterclaim; and as thus modified affirmed, with $20 costs and disbursements to plaintiff-appellant. Although plaintiff appeals from every part of the order, it is not argued that the further condition imposed at Special Term in vacating the judgment, that plaintiff pay the Sheriff’s poundage, should be eliminated; and in any case we would regard this condition as reasonable. Upon plaintiff’s default in pleading defendants applied to the court for a direction that judgment enter in the face amount of the counterclaim. This motion was granted and judgment was directed for the amount demanded in the counterclaim. The counterclaim was not for liquidated damages within sections 485 and 487 of the Civil Practice Act, and judgment could only have been entered on an assessment of damages by the court (Civ. Prac. Act, §§ 489, 490; ef. O’Connell v. Schumer, 266 App. Div. 138). Concur—Breitel, J. P., Rabin, Yalente, Stevens and Bergan, JJ.