Silken v. Farrell

278 A.D. 592, 102 N.Y.S.2d 221, 1951 N.Y. App. Div. LEXIS 4051

Opinion

In an action to recover damages for breach of a covenant of quiet enjoyment in a long-term lease, defendant moved to set aside and vacate a default judgment, obtained by plaintiff after service by publication, and for leave to serve an answer and counterclaim pursuant to section 217 of the Civil Practice Act. The motion was granted without terms. A motion for reargument was made and on reargument the court adhered to the original decision, stating: “Whether or not defendant should be made to bear the burden of the sheriff’s fees or the advertising costs is a matter which should abide the event when, as, and if, the trial of this matter is concluded.” Order on reargument modified by striking from the last ordering paragraph the words “ adhered to ” and substituting in place thereof the following: “modified so as to provide that the judgment entered herein in favor of plaintiff against defendant on May 18, 1950, for $20,374.30 be and the same hereby is set aside and vacated upon condition that defendant pay the taxable costs to date, as well as plaintiff’s disbursements.” As so modified, the order is affirmed, with $10 costs and disbursements to appellant, with leave to defendant to serve her answer and counterclaim within fifteen days after the entry of the order hereon. It was an improvident exercise of discretion to grant defendant’s motion to open her default without imposing terms. Nolan, P. J., Carswell, Johnston, Wenzel and MaeCrate, JJ., concur.