Majority
p. 992Clemens Muller, Resp’t, v. Charles F. Post, App’lt. (Supreme Court, General Term, First Department, Filed October 24, 1890.)
Headnote
Default—Conditions on opening.On opening a default tile court imposed as terms the payment of costs
p. 993
of motion and of all costs of the action to date, and a stipulation to try the case when reached. Held, that the conditions were excessive; that all that should have heen required was the stipulation, costs of motion, trial and fees and disbursements of the term.
Appeal from so much of an order opening a default as imposes conditions. .
The conditions imposed were that the defendant forthwith pay ten dollars cost of the motion, all costs of the action which had accrued up to the time of making the application, and upon the further condition to try the case when reached without asking a postponement for any reason. ■ The costs as taxed amounted to $130.25. The aj>peal is based upon the claim that the terms and conditions imposed by the court are unnecessarily harsh and severe, and were an abuse of the judicial discretion vested in the special term justice.
J. 0. Julius Langbein, for app’lt; Hugo B. Muller, for resp’t.
There are circumstances disclosed by the papers herein which might very well lead the court to impose heavy conditions to the granting of a favor. But we think that perhaps the terms were rather severe.
We think that the plaintiff was entitled to costs of motion, trial fee, term, fee and disbursements of the term, and to the stipulation ordered.
The order appealed from should be modified to this extent; and, as modified, affirmed, without costs.
Daniels and Brady, JJ., concur.