Majority
p. 1058Lilly Schmitt, as Administratrix of the Estate of Olga Muller, Deceased, Respondent, v. Joseph Pietrangelo, Appellant.
In an action sounding in conversion, defendant appeals from an order granting plaintiff’s motion to open a default in the service of a bill of particulars. Order reversed, with $10 costs and disbursements, and motion denied. In Mead v. Consolidated Metal Spinning & Stamping Co. ( 208 App. Div. 814 ), it was held that delays of five and two months respectively in moving to open default and to vacate orders for a bill of particulars and of preclusion constituted “ gross laches and inexcusable
p. 1059
disregard of the order ”. In this case the delay was more than eighteen months, and under the circumstances defendant should have had the relief asked for. (See Lawson v. Hilton, 89 App. Div. 303 , 305.) MacCrate, Acting P. J., Schmidt, Murphy and Ughetta, JJ., concur; Beldock, J., dissents and votes to affirm on the ground that on this practice motion the Special Term properly exercised its discretion in opening the default. [See post, p. 1082.]
Cases cited
- Lawson v. Adams 89 App. Div. 303 at 305 p. 1059