Rice v. Maddock — 28 N.Y. St. Rep. 413

Majority

p. 413

Helen A. Rice, as Administratrix of Clement T. Rice, App’lt, v. Alice Maddock et al., Resp’ts.^[1]

(New York Common Pleas, General Term,

Filed December 2, 1889.)

Headnote

Appeal—Opening default—Terms.

On the trial of an action to compel an accounting by the partner of plaintiff’s deceased husband the referee found in her favor on the facts, but held the action barred by the statute. On appeal the judgment was affirmed by default, but the default was reopened on payment of ten dollars costs and the giving of a bond to pay the judgment. It appearing that she was poor and unable to comply with the conditions, Held, that under the circumstances the default should be opened on the payment of the costs and the giving of such undertaking as the appellant can procure.

Backus & Manne, for app’lt; A. Lamont, for resp’ts.

The appeal in this cause was set down for argument on Hay 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 Honday of June. The papers were submitted to the court, and on J une 20th it was ordered that the default be opened on the payment of ten dollars costs, and upon plaintiff 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 fora modification of the order. The action is brought for an accounting against the defendant as a copartner of plaintiff’s deceased husband. The referee found the existence of the copartnership, but held the plaintiff’s action to be barred by the statute of limitations. Hnder 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 ten dollars 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 ten dollars costs of this motion.

Larrehore, Oh. J., Daly and Van Hoesen, JJ., concur.