Opinion
November 9, 1970
Cross appeals as follows from an order of the Supreme Court, Kings County, dated September 5, 1969, which granted defendant Fuss' motion for reargument and thereupon adhered to the original determination granting his prior motion to the extent of excusing his default upon the trial and vacating the ensuing default judgment as to him on condition of his furnishing a bond for $19,000 to secure payment of any judgment obtained against him ultimately. Defendant Fuss appeals, as limited by his notice of appeal and his brief, from so much of the order as imposed the condition that an undertaking be furnished; and plaintiffs appeal from so much of the order as granted reargument. Order modified by (1) inserting in the second ordering paragraph thereof, immediately after the words "the Court adheres to its original decision", the following: "except that the provisions that a bond be furnished and that the judgment is vacated are withdrawn"; (2) striking therefrom the third ordering paragraph, which pertains to such bond and the vacatur of the judgment; and (3) substituting therefor the provision that the judgment shall stand (a) as security for payment of any moneys which may ultimately be adjudged that defendant Fuss pay to plaintiffs upon the causes of action herein and (b) subject to the further order of the court. As so modified, order affirmed insofar as appealed from, without costs. In our opinion, under the circumstances adduced at bar the default was excusable and the condition that a bond be filed constituted a burden tantamount to a deprivation of defendant Fuss' right to have his day in court on the issue of his personal liability. Rabin, Acting P.J., Latham, Kleinfeld, Brennan and Benjamin, JJ., concur.