Opinion
May 28, 1920.
Harry E. Herman of counsel [ A.O. Ernst with him on the brief; Herman Ernst, attorneys], for the appellant.
Leo G. Rose, for the respondents.
The failure to answer the call of the calendar on behalf of the defendant, which resulted in a judgment in favor of the plaintiff, was caused by negligence of the clerks of the defendant's attorneys, and was not a willful default of the defendant. When the defendant's attorneys requested the plaintiffs' attorneys to open the default most onerous and unconscionable terms were sought to be imposed. Upon granting the defendant's motion the court imposed these terms: That the defendant should pay the costs of the action, give a bond for the payment of any judgment which plaintiffs might eventually recover against the defendant, and within five days after the entry of the order file and serve his consent to try the issues forthwith before a referee to be appointed by the court. The defendant does not object to giving a bond to secure the payment of a judgment to be recovered. We see no reason because of the fact that an attorney has negligently suffered a default judgment to be taken, why the client should be deprived of the right to a trial of his case by a jury and be burdened with the expenses of a reference. The plaintiffs have been put to expense and delayed in the trial of the action; justice requires that they be indemnified by payment of their costs and disbursements. ( Girards v. Rosencrans, 157 App. Div. 326.)
The order appealed from will be modified by striking therefrom subdivision 3, which requires a stipulation to try the issues before a referee, and inserting in lieu thereof that the case be restored to the trial calendar and may be placed upon the day calendar for trial on two days' notice, with ten dollars costs and disbursements to the appellant.
CLARKE, P.J., LAUGHLIN, DOWLING, PAGE and GREENBAUM, JJ., concur.
Order modified as indicated in opinion, and as so modified affirmed, with ten dollars costs and disbursements to appellant.