Hinz v. Starin — 25 N.Y. St. Rep. 329

Majority

p. 329

John R. Hinz, as Administrator, etc., App’lt, v. John H. Starin, Resp’t.

(Supreme Court, General Term, Second Department,

Filed June 28, 1889.)

Headnote

1. Judgment by default— Opening—Creditors.

Where as a condition of opening a default the court obliged plaintiff’s counsel, who was regular in his practice, to try the case upon the printed case, if he went to trial within a week, Held, that the discretion of the court was not wisely exercised as to the terms, in that there was nothing in plaintiff’s conduct to justify the imposition of the condition.

2. Same.

Held, that pecuniary terms should have been imposed as a condition for the favor granted defendant..

p. 330

Appeal from a judgment entered at special term, Kings county. For opinion on former appeal by defendant, see 21 N. Y. State Rep., 122.

Martin J. Keogh, for app’lt; Wm. W. Goodrich, for resp’t.

This is an appeal from an order opening a default and setting aside an inquest taken in this action at the March circuit in Westchester county against the defendant m favor of the plaintiff.

There was a disagreement between the attorneys in relation to the trial of the cause and the counsel for the plaintiff was entirely justifiable and regular in bringing the same on for trial, yet under all the circumstances it was wise to open the default and set aside the inquest upon proper terms.

We do not think, however, that the discretion of the court was wisely exercised in relation to the terms, first because it obliged the counsel for plaintiff who was regular in his practice-to try the cause upon the printed case if he went to trial that week. That condition obliged the plaintiff to do what the presiding judge at the circuit could not require him to do when there was nothing in his. conduct or condition to justify the imposition of such a condition.

We think, also, that pecuniary terms should have been imposed as a condition for the favor granted to the defendant.

The defendant should have been required to pay $100 to the counsel for the plaintiff, thirty dollars trial fee and ten dollars for opposing the motion to open the default and the legal disbursements for the March term of the court. The order should be modified in the respects mentioned, and as so modified affirmed, without costs.

Barnard, P. J., concurs; Pratt, J., not sitting.