Opinion
December, 1929.
Order of the County Court of Nassau county, denying defendant's motion to open his default and set aside the judgment, reversed upon the law and the facts, with ten dollars costs and disbursements, and defendant's motion to open his default, to set aside the judgment and to restore the action to the calendar for trial, granted upon condition that within ten days from service of the order upon this appeal he pay to plaintiff the taxable costs of the action to date; otherwise, order affirmed, with ten dollars costs and disbursements. This court is of opinion that the discretion of the learned county judge was improperly exercised in that it appears defendant's default was excusable and not willful and the action had only been noticed for trial two weeks prior to the first call of the calendar. Lazansky, P.J., Rich, Young, Seeger and Scudder, JJ., concur.