Majority
p. 762Leon Bernstein, Respondent, v. Alexander Zawaski et al., Doing Business as Zawaski Brothers, Appellants.
Appeal dismissed without pre-
an appellants at Special to vacate the ex parte order entered January 29, 1969 striking their answer and directing an assessment of damages, with $30 coste and disbursements to respondent. When we
p. 763
denied plaintiff’s prior motion to dismiss the appeal the record did not disclose sufficient facts from which it could be determined that the appeal was from an ex parte order. It was indicated that the order appealed from had been entered on notice but on defendant’s default. It now appears that this was not the fact. The order had been obtained without any notice to defendants and it is, therefore, unappealable. (See CPLR 5701, subd. [a], par. 2; 7 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 5701.06; Matter of 350 West Forty-Sixth St., 20 A D 2d 685 ; McCormick v. Mars Assoc., 25 A D 2d 433 .) By moving to vacate the order entered January 29, 1969, a record can be made in which appellants may proffer the excuse, if any, for their failure to comply with the order dated December 26, 1968. Concur— Capozzoli, J. P., Tilzer, McGivern, Markewich and Nunez, JJ.
Cases cited
- In re the Dissolution of Three Hundred Fifty West Forty-Sixth Street, Inc. 20 A D 2d 685 p. 763
- McCormick v. Mars Associates, Inc. 25 A D 2d 433 p. 763