Gotham Raincoat Co. v. Levey — 149 N.Y.S. 482

Majority

p. 482

GOTHAM RAINCOAT CO. v. LEVEY.

(Supreme Court, Appellate Term, First Department.

October 27, 1914.)

Headnote

Courts (§ 189*) — City Courts — Default—Setting Aside — Conditions.

Where plaintiff’s default in the City Court of the City of New York was taken while his counsel was engaged in the trial of a case in the Supreme Court, the setting aside of the default should not have been conditioned upon the payment of taxable costs.

(Ed. Note. — For other' cases, see Courts, Cent. Dig. §§ 409, 412, 413, 429, 458; Dec. Dig. § 189.^[1] ]

p. 483

Appeal from City Court óf New York, Special Term.

Action by the Gotham Raincoat Company against Murray L. Levey.

From an order vacating plaintiff’s default upon payment of the taxable costs to date, plaintiff appeals.

Modified.

Argued October term, 1914, before SEABURY, BIJUR, and COHALAN, JJ.

Spiro & Wasservogel, of New York City (Abraham I. Spiro, of New York City, of counsel), for appellant.

Lester W. Eisenberg, of New York City (Arthur C. Mandel, of New York City, of counsel), for respondent.

It is not denied that the default was taken at a time when plaintiff’s counsel was engaged in the trial of a case in the Supreme Court and that due proof of that fact was submitted to the trial court.

The order, therefore, should be modified, by striking therefrom the condition of the payment of costs, and, as so modified, affirmed, with $10 costs and disbursements to the appellant. All concur.