Deickler v. Baecher — 67 A.D.2d 661

Majority

p. 661

R. Barry Deickler, Respondent, v John Baecher, Defendant, and Elizabeth Baecher, Appellant.

— In an action to recover a real estate broker’s commission, in which a judgment in favor of plaintiff and against defendant Elizabeth Baecher was entered on default, said defendant appeals from (1) an order of the Supreme Court, Westchester County, dated November 21, 1977, which denied her motion to vacate the default judgment and (2) a further order of the same court, dated January 19, 1978, which treated her motion "renewing the Order of November 21, 1977 and/or permitting reargument of same” as one for reargument and denied it (we deem said motion to have been one for renewal). Order dated January 19, 1978 reversed, without costs or disbursements, and motion to renew granted; upon renewal, order dated November 21, 1977 reversed, without costs or

p. 662

disbursements, and motion to vacate granted, with the judgment to stand as security. Appellant’s time to answer is extended until 20 days after entry of the order to be made hereon. Under the facts of this case, the motion to vacate should be granted with the judgment to stand as security (see Thomlow v Long Is. R.R. Co., 33 AD2d 1027 ; Mindy’s Wine Cellar v American & Foreign Ins. Co., 51 AD2d 650 ; Capellino Abattoir, Inc. v Lieberman, 59 AD2d 986 ; Matter of Dowling v Bowen, 53 AD2d 862 ; Coletto v Bimco Ind., 54 AD2d 955 ). O’Connor, J. P., Shapiro, Cohalan and Hargett, JJ., concur.

Cases cited

Mindy's Wine Cellar, Inc. v. American & Foreign Insurance 51 AD2d 650 N.Y. App. Div. 1976-01-16 p. 662
Capellino Abattoir, Inc. v. Lieberman 59 AD2d 986 N.Y. App. Div. 1977-11-17 p. 662
Dowling v. Bowen 53 AD2d 862 N.Y. App. Div. 1976-07-06 p. 662