Pomares v. Duncan — 11 N.Y.S. 380

Majority

p. 380

Pomares v. Duncan.

(Supreme Court, Special Term, New York County.

June, 1890.)

Headnote

•Judgment—Reopening Default—Terms.

On an application to open a judgment by default taken against plaintiff by defendant, who had set-up a counter-claim, the court, as a condition on which plaintiff will be allowed to prove his cause of action, besides requiring payment of •costs, may allow the judgment on the counter-claim to stand, with the right to either party to make a proper motion in regard to it.

Action by Manuel Pomares against William B. Duncan for breach of contract. Defendant pleaded a counter-claim, and took judgment by default.

F. W. Angel, for plaintiff. Robert S. Minturn, for defendant.

The default is so far opened as to allow plaintiff to pro•ceed, and prove the cause of action set up in the complaint, before the referee heretofore appointed, on condition that plaintiff pay to defendant costs, after notice of trial, $30 trial fee, and $10 costs of the motion, and give a bond in 'the sum of $250 to pay the costs of such trial, if he is defeated; the judgment •on defendant’s counter-claim to stand, with right to either party to make -such a motion as to such a judgment on the decision of the question as to the ¡plaintiff’s right to recover on his cause of action set up in the complaint, as :he shall be advised. If these conditions are not accepted, motion denied, with ••$10 costs.