Opinion
March, 1913.
Appeal by the plaintiff from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 24th day of January, 1913, denying her motion to open a default and to vacate the judgment entered herein dismissing her complaint.
A conclusion that the Special Term abused its discretion in its refusal to open the default is not essential to our review. ( Lawson v. Hilton, 89 App. Div. 303.) The action was new, and the time that intervened its first appearance on the trial calendar and the dismissal of the complaint was less than six days. The plaintiff's former attorney perhaps had some justifiable reason for belief that when the trial court denied his motion for the framing of issues for a jury it would grant a stay in order to make a review of that order possible before he would be forced to trial in the equity side of the court. The counsel had not noticed his cause for trial at an Equity Term, had never answered ready when the cause was called, had not imposed upon the court in any way, and did not in any defiant spirit invite a dismissal of the complaint. The action appears upon the surface to be of a substantial character, and it is indicated that if the order of dismissal be affirmed the plaintiff will forever lose her day in court. It does not appear that the defendants will be prejudiced in any particular way if the cause be restored to the calendar for trial. We think that the plaintiff was not limited to an appeal from the order that denied her motion for a stay, but was free to move the court to open the default, and that she should have been afforded such relief upon proper terms. The order is reversed, without costs of this appeal to either party, and motion granted upon payment within ten days after the entry of this order of twenty dollars costs, together with all disbursements of the defendants incident to the trial. Jenks, P.J., Thomas, Carr, Rich and and Stapleton, JJ., concurred. Order reversed, without costs of this appeal to either party, and motion granted, upon payment within ten days after the entry of this order of twenty dollars costs, together with all disbursements of the defendants incident to the trial.