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Clare v. Engeman

143 N.Y.S. 725 Court Argued October term, 1913, before SEABURY, GUY, and BIJUR,, JJ. Decision date 1913-10-22 English

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CLARE v. ENGEMAN.
(Supreme Court, Appellate Term, First Department.
October 22, 1913.)

Headnote

Courts (§ 189*)—City Court—Default—Opening—Conditions.
In an action in the City Court of New York City for damages for false representations, where it appeared on a motion to open defendant’s default that it was due to his belief that he had 20 days in which to answer, and that upon learning of the default he immediately saw his attorney, and 4 days later procured an order to show cause why the default should not be opened, the opening of the default, in view of the nature thereof and the character of the complaint, should not have been made conditional upon the filing of an undertaking to secure payment of any judgment recovered by plaintiff.
[Ed. Note.—For other cases, see Courts, Cent. Dig. §§ 409, 412, 413, 429, 458; Dec. Dig. § 189.[1] ]
Appeal from City Court of New York, Special Term.
Action by William Clare against William A. Engeman and another.
From an order granting his motion to open his default on condition, the defendant named appeals. Modified.
The action was one for damages claimed to have been sustained by reason of false representations by which plaintiff was induced to enter into a contract. It appeared from defendant’s affidavit on the motion to open the default that the summons and complaint were served on August 1st; that he thought he had 20 days in which to answer, until he received a letter from plaintiff’s attorney on August 14th informing him that he was in default; and that he at once saw his attorney, who began preparation of his answer. An order to show cause why the motion should not be granted was made August 18th.
Argued October term, 1913, before SEABURY, GUY, and BIJUR,, JJ.
Warren S. Burt, of New York City, for appellant.
Henry Kuntz, of New York City (Abraham P. Wilkes, of New York City, of counsel), for respondent.

This is an appeal by defendant from an order granting his motion to open his default, and allowing him to plead upon condition that he file an undertaking to secure any judgment that plaintiff may recover. In view of the nature of the default and the

p. 726
character of the complaint, we think the order should be modified, by striking out the condition that the defendant be required to file an undertaking; and that the motion should have been granted upon payment of $20 costs.

_ It is so ordered, without costs or disbursements of this appeal to either party.