Jenkins v. Humboldt Library — 66 N.Y.S. 1133

Majority

p. 1133

JENKINS et al., Respondents, v. HUMBOLDT LIBRARY, Appellant.

(City Court of New York,

General Term.

October 29, 1900.)

Headnote

Action by Henry C. Jenkins and am-

p. 1134

•other against the Humboldt Library. From an order refusing defendant a new trial after judgment by default, except on certain conditions, it appeals.

Reversed in part.

Max D. Steuer, for appellant. Frayer, Smith, White -■& Seaman, for respondents.

We think, under all the circumstances disclosed by the papers,' that a ■considerate administration of justice requires .modification of the order appealed from, and conclude that the defendant may have a trial ■before the jury. Upon payment of $10 motion costs by the defendant, the order complained of will be modified by opening the -default upon which judgment was entered for the purpose and to the extent of enabling ■defendant to present its defense at trial term at some convenient, but early, day, which •should be within the fortnight after the announcing of this decision; but judgment to stand for security, and all proceedings on both sides and by the sheriff to be held and stayed until after verdict or other disposal of the issues by the court at trial term. To this extent the order appealed from will be reversed, and the relief above indicated accorded thereupon by such modification, with costs and disbursements of this appeal to abide the ■event. If the conditions hereby imposed be not complied with, then the order appealed from will be affirmed, with costs and disbursements absolute to respondent.

CONLAN, J., concurs.