Majority
p. 88COHEN v. GANZ. (Supreme Court, Appellate Term, First Department. December 4, 1914.) Argued October term, 1914, before SEABURY, BIJUR, and COHALAN, JJ.
Headnote
Judgment (§ 167[1] )—Default—Vacation—Cost—Carelessness of Attorney’s Clerk—Conditions.Where a default judgment was rendered against defendant because of the carelessness of a clerk in the office of defendant’s attorney, the default would be set aside on condition that defendant pay $10 costs and file an undertaking to secure the amount of the judgment rendered.
[Ed. Note.—For other cases, see Judgment, Cent. Dig. §§ 326, 330, 333, 334; Dec. Dig. § 167.*]
Appeal from Municipal Court, Borough of Manhattan, Second District.
Action by Jacob Cohen, an infant, by David Cohen, his guardian ad litem, against Meyer Ganz. From a Municipal Court order denying defendant’s motion to open his default, he appeals. Reversed on condition.
Lyman A. Spalding, of New York City (Thomas J. Skelly, of New York City, of counsel), for appellant.
Goldstein & Goldstein, of New York City (Abraham Cupton, of counsel), for respondent.
The default seems to have been the result of the carelessness of a clerk in the office of defendant’s attorney. The ap
p. 89
plication to open the default should, we think, have been granted upon terms.
Order affirmed, with costs, unless the defendant within five days will pay $10 costs and furnish an undertaking to secure the amount of the judgment rendered, in which event the order is reversed, default opened, judgment vacated, and a new trial ordered, with costs to the appellant to abide the event.