Hirschberg v. Kruger — 133 N.Y.S. 1126

Majority

p. 1126

HIRSCHBERG, Respondent, v. KRUGER, Appellant.

(Supreme Court, Appellate Division, Second Department.

March 15, 1912.)

Headnote

Action by Henry Hirsehberg against John L. Kruger.

We think that the Special Term should have relieved the defendant from his default, which was due to excusable inadvertence, and that the defendant should have a hearing upon the merits as presented by the record. The order is reversed, without costs, and the motion to open the default granted, upon payment of $10 costs and plaintiff’s disbursements on account of the entry of judgment and the proceedings thereon. The judgment must stand as security, or in lieu thereof the defendant may file within 10 days a proper bond to secure the plaintiff. The motion for a stay is dismissed, without costs.

THOMAS, J., dissents.