Majority
p. 738Benjamin Frank Wood, Respondent, v. Peter C. Gallagher, Appellant.
Headnote
Judgments — opening default — condition in order opening default in answering that case be set down for trial on day certain — no answer or notice of trial served or note of issue filed — condition improperly imposed.Appeal from so much of an order of the Supreme Court, made at the New York Special Term and entered in the New York county clerk’s office on May 17, 1923, as sets this case down on the day calendar for trial June 4, 1923.
The Special Term made an order opening a default in answering and set the case down for trial on June 4, 1923, without the answer having been served, before any notice of trial was given or note of issue filed. It is apparent that no authority exists for imposing this direction as a condition of opening the default, and the provision in the order in so far as it sets the case for trial for June fourth should be struck out and as modified the order should be affirmed, with ten dollars costs and disbursements to the appellant. Present •—■ Clarke, P. J., Smith, Merrell and McAvoy, JJ. Order modified as stated in order and as so modified affirmed, with ten dollars costs and disbursements to appellant.