Rice v. Maddock — 7 N.Y.S. 632

Majority

p. 632

Rice v. Maddock et al.

(Common Pleas of New York City and County, General Term.

December 2, 1889.)

Headnote

Appeal—Re-Opening Affirmance by Default—Costs.

A referee’s decision finding in plaintifl’s favor on questions of fact, but holding her cause of action barred by the statute of limitations, and rendering judgment against her for costs and disbursements of the action, was affirmed on appeal by default, which was afterwards ordered to be opened on her payment of costs of motion, and the giving of a bond to pay the judgment should it be affirmechon the hearing, but on account of her poverty she was unable to procure satisfactory bondsmen. Meld, that the default should be opened on plaintiff’s payment of costs of motion, and the giving of such a bond as she is able to procure.

Motion to modify an order of the general term imposing terms as a condition for opening defendant’s default. See 5 IT. Y. Supp. 958.

Argued before Larremore, O. J., and Daly and Van Hoesen, JJ.

Backus & Manne, (Robt. G. Ingersoll, of counsel,) for appellant. Alex. Lamont, for respondents.

The appeal in this cause was set down for argument on May 16, 1889, but appellant failed to appear, and judgment of affirmance was ordered by default. A motion was subsequently made to the general term to open the default, returnable on the first Monday of June. The papers were submitted to the court, and on June 20th it was ordered that the default be opened on the payment of $10 costs, and upon plaintiff’s giving a bond to pay the amount of the judgment should it be affirmed. The judgment was for the sum of $743.72 for costs and disbursements of the action. The plaintiff, who is a widow, and without means, has not been able to secure bondsmen and comply with the conditions imposed, and she now asks for a modification of the order. The action is brought for an accounting against the defendant, as a co-partner of plaintiff’s deceased husband. The referee found the existence of the co-partnership, but held the plaintiff’s action to be barred by the statute of limitations. Under the circumstances I am in favor of modifying the order by striking out the provision as to security, and allowing the default to be opened upon the payment of the said $10 costs, and of any costs imposed by any subsequent orders, and upon the giving of the undertaking, which appellant has already served and offered as the best she can do. The judgment of affirmance of the orders of the special term will be vacated upon complying with the above terms and paying $10 costs for this motion.