Opinion
October 20, 1970
Order entered January 26, 1970, unanimously modified, on the law, and in the exercise of discretion, without costs and without disbursements, to impose as a condition of vacatur of default judgment after inquest the payment by defendants-respondents to plaintiffs-appellants of $50 motion costs, within 20 days of service by appellants upon respondents of a copy of the order entered hereon; should such payment not be made within the period so limited, the motion to vacate shall be denied. We here review again, as we did in Hahn v. Binder ( 33 A.D.2d 903) a violation of the rules respecting motions to vacate defaults suffered in trial parts, whether resulting in inquests or dismissals. The applicable rule clearly provides that any such motion shall be made in Trial Term, Part I, to "be heard and determined by the justice who presided in the calendar part at the time the cause was assigned" (Rules of Supreme Court, New York and Bronx Counties, 22 NYCRR 660.5 [c] [3] [i], [previously numbered, with identical subdivisions, as part of rule V]). The Justice in Special Term, Part I, before whom the motion to vacate was returned, should have referred it under the rule to Trial Term, Part I. His decision, however, except for the condition we now impose, was essentially correct upon the merits in the circumstances of this particular case; hence, we do not remand to Trial Term, Part I, but consider this to have been done, and now do what the appropriate Justice in the calendar part should have done in the circumstances. We also consider the fact that Special Term's disposition herein was arrived at before publication of our decision in Hahn v. Binder ( supra); all concerned in future motions for vacatur of defaults in trial parts are required, however, to take note hereafter of the rules and to proceed accordingly.
Concur — Eager, J.P., Capozzoli, McGivern, Markewich and McNally, JJ.