Opinion
June Term, 1902.
Orders reversed, with ten dollars costs and disbursements of this appeal to abide the event, and motion to open the default granted upon the following terms and conditions: That the judgment stand as security until the final determination of the action; that the defendant within ten days pay the costs and disbursements of the plaintiff to the time of the entry of the judgment and ten dollars costs of each motion in the Special Term, and to stipulate by her attorneys that, if the plaintiff elects to apply to have the action tried at the pending Trial Term in Erie county, no opposition on her behalf will be made to such application. Held, that, without deciding the controverted questions of fact raised by the affidavits contained in the record, we are convinced, from the undisputed facts, that the default should have been opened and the defendant permitted to defend upon the imposition of proper terms. All concurred.