Veit v. Smith

241 A.D. 687

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 15, 1934
• Status: Published

Opinion

Order of December 4, 1933, reversed on the law and the facts, defendants’ motion to open the default, made on the trial, granted, and the judgment vacated, without costs, on condition that within ten days from the entry of the order herein the defendants pay the plaintiff fifty dollars costs and the disbursements of plaintiff on this appeal; and on the further condition that within the same time the defendants give an undertaking, with corporate surety, in the sum of $2,674.68, to secure the payment of any judgment which the plaintiff may recover in the action. In the event of defendants’ failure to comply with the foregoing conditions the order is affirmed, with ten dollars costs and disbursements. The grounds of the conditional reversal are that the default of the defendants on the trial was not deliberate, willful or in bad faith, but occurred under circumstances where they and their counsel were not seriously blamable. They should be permitted to present their defenses on a trial — there appearing to be merits in the defenses alleged in the answers. (See Baldwin v. Yellow Taxi Corporation, 221 App. Div. 717.) Lazansky, P. J., Young, Kapper, Carswell and Davis, JJ., concur.