Opinion
December 9, 1963
In an action by the defendant's three sisters to impress a trust on certain assets in her possession which are alleged to be properly a part of the estate of their deceased father, the defendant appeals from an order of the Supreme Court, Kings County, dated December 21, 1962, which denied her motion to vacate: (1) an inquest taken against her upon her default; and (2) the judgment entered December 4, 1962 on the decision of a Special Referee following such inquest before him. Order affirmed, with $10 costs and disbursements. In our opinion, the default was not "due to mistake, inadvertence, surprise or excusable neglect," but was willful. Hence, the Special Term properly exercised its discretion in denying the motion (cf. Heller v. Ward, 10 A.D.2d 633). [For prior appeal from the judgment, see 19 A.D.2d 729.] Beldock, P.J., Ughetta, Kleinfeld, Rabin and Hopkins, JJ., concur.