Opinion
January 30, 1961
In an action to foreclose a mortgage made by defendant Lillian Snyder, covering a one-family house owned by her, in which she asserted counterclaims, based on misrepresentation and fraud, for the cancellation of the mortgage and the accompanying bond, said defendant and her husband, defendant Edward Snyder, appeal: (1) from an order of the Supreme Court, Nassau County, dated June 2, 1960, which denied their motion to open their default in appearing for trial, to set aside the inquest and to restore the action to the Trial Calendar; and (2) from the judgment of foreclosure of said court, entered August 25, 1960, upon said inquest. Order reversed, motion granted, default opened, action restored to the Trial Calendar, and inquest and foreclosure judgment vacated, on condition that, within 20 days after entry of the order hereon, the said Snyder defendants shall pay to the plaintiff the sum of $100 together with $10 costs and disbursements on the appeal from the order. In the event said defendants fail to comply with this condition, the order is affirmed, with $10 costs and disbursements to the plaintiff and the appeal from the judgment is dismissed. No appeal lies from a default judgment. Said defendants made a sufficient showing of merit and, under all the circumstances, their default should be opened upon the condition stated. Beldock, Acting P.J., Ughetta, Kleinfeld, Christ and Pette, JJ., concur.