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Ettlinger v. Lepow Securities Corp.

21 Misc. 2d 262 Court Supreme Court, Appellate Term, First Department, Decision date 1959-11-12 English

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p. 262
Samuel Ettlinger et al., Respondents, v. Lepow Securities Corp. et al., Appellants.
Supreme Court, Appellate Term, First Department,
November 12, 1959.
p. 263
Borden £ Ball (Arthur M. Borden and John H. Ball of counsel), for appellants.
Henry L. Bayles for respondents.

Where the record shows a default was not willful it is improper to require the posting of cash or a bond as a condition of opening the default. (Schlein v. Schlein, 276 App. Div. 951 .) The condition that the judgment stand as security would have been sufficient. (Aiello v. Baldasare, 17 Misc 2d 449 .)

The order below should be modified to the extent of striking therefrom the condition of posting cash or a bond, and substituting therefor the condition that the judgment stand as security, and as modified affirmed, with $10 costs to defendants.

Concur — Hofstadter, J. P., Aurelio and Tilzer, JJ.

Order modified, etc.

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