Opinion
November 2, 1961
Order, entered on July 12, 1961, granting defendant's motion to open his default in answering, vacating and discharging the judgment entered by plaintiff, and vacating a levy made against a bank account maintained jointly by defendant and his wife, unanimously modified, on the facts and in the exercise of discretion, so as to permit the opening of the default judgment on the following conditions: (1) that defendant pay the taxable costs and disbursements of plaintiff to the date of the order below; (2) that the judgment stand as security; (3) that the levy on the bank account remain in effect until the termination of the action, unless said levy is released by defendant's filing of a surety bond; and, as so modified, the order is affirmed, with $20 costs and disbursements to plaintiff-appellant, with leave to defendant to serve his answer and counterclaims within 15 days after the entry of the order hereon. We are of the opinion that Special Term properly allowed the opening of the default judgment. However, in the circumstances of this case, it was an improvident exercise of discretion to grant defendant's motion to open his default without imposing terms. Settle order on notice.
Concur — Botein, P.J., Valente, Stevens, Eager and Steuer, JJ.