Hyperlawhypertext legal database Vacuna Sales Co. v. Regent Theatre 149 N.Y.S. 863

← Cases

Vacuna Sales Co. v. Regent Theatre

149 N.Y.S. 863 Court Argued October term, 1914, before SEABURY, BIJUR, and COHALAN, JJ. Decision date 1914-11-19 English

Contents

Majority

p. 863
VACUNA SALES CO. v. REGENT THEATRE
(Supreme Court, Appellate Term, First Department.
November 19, 1914.)

Headnote

Courts (§ 189[1] ) — Municipal Court — Judgment—Opening Default — Terms.
Where a default judgment is taken in a Municipal Court, and an inquest had in good faith, without knowledge of a sufficient excuse of defendant for his failure to appear, the default should have been opened on terms.
[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 409, 412, 413, 429, 458; Dec. Dig. § 189.*]
Appeal from Municipal Court, Borough of Manhattan, First District.
p. 864
Action by the Vacuna Sales Company against the Regent Theatre. Erom an order denying a motion to open a default judgment .in the Municipal Court, defendant appeals.
Reversed, judgment vacated, and new trial ordered.
Argued October term, 1914, before SEABURY, BIJUR, and COHALAN, JJ.
Simon Seley, of Brooklyn, for appellant.
George Ryall, of New York City, for respondent.

The defendant, upon the return of the order to show cause why his default should not be opened, gave a good and sufficient excuse for his failure to appear and file an answer. The reason for his failure to appear was not known to the plaintiff’s attorney, nor to the trial justice, and the taking of the inquest was therefore proper. The default should have been opened upon terms.

Order reversed, judgment vacated, and new trial ordered, upon payment of the sum of $10 in the court below; costs of the appeal to the appellant to abide the event.