Opinion
March, 1907.
Robert L. Turk, for appellants.
Arthur K. Kuhn, for respondent.
The defendants have appealed from a judgment entered against them by default, and also from an order denying a motion to open the default and vacate the judgment. The action is for goods sold and delivered to the defendants as copartners. We think that the motion to open the default should have been granted. On the day before the inquest was taken, defendants' counsel had been notified to go on with the trial of a case in the Supreme Court on the next day, December nineteenth. It also appears that defendants' attorney had to answer a motion on the calendar of Part One, Special Term of the Supreme Court, on the nineteenth. In view of these facts we think the motion to open the default should have been granted. The order denying the motion to open the default and vacate the judgment is reversed, with costs to appellant to abide the event. The appeal from the judgment is dismissed, without costs.
Present: GILDERSLEEVE, DAVIS and HENDRICK, JJ.
Order denying motion to open default and vacate judgment reversed; appeal from judgment dismissed.