Herman v. Hyman

112 N.Y.S. 1077

• Court: Appellate Terms of the Supreme Court of New York
• Decided: November 24, 1908
• Status: Published

Opinion

PER CURIAM.

This is an appeal by the defendant from a judgment entered against him and from an order denying his motion to open his default. When the case was originally upon the calendar, the complaint was dismissed upon the failure of the plaintiff to appear. Subsequently the plaintiff moved to open his default, and that motion was granted upon the payment of $10 costs within the time specified. The plaintiff failed to comply with the terms of this order, and through an error of the clerk the case was restored to the calendar for trial. When the case was called, the defendant failed to appear, and judgment by default was entered against him. The defendant now appeals from this' judgment and also from the order, which was subsequently made, denying his motion to open the default which he suffered.

It is clear from the recitation of these facts that the order denying the motion to open the defendant’s default_ should be reversed and the original judgment against the plaintiff reinstated, with leave to the plaintiff to have said default opened upon the payment of $10 costs within 10 days from the service of a copy of the order entered upon this decision upon him or his attorney. The order denying the defendant’s motion to open his default is reversed, and the appeal from the judgment is dismissed.

The appeal from the judgment is dismissed without costs, and the order denying the defendant’s motion to open his default is reversed, with costs to the appellant and the original judgment against the plaintiff reinstated, with leave to the plaintiff to have said default opened upon the payment of $10 costs within 10 days from the service of a copy of the order entered upon this decision upon him or his attorney, with notice of entry thereof.