Opinion
February 3, 1964
In an action against an insurance broker, Arnold Chait, Ltd., and others, to recover damages by reason of breach of contract, misrepresentation, etc., the plaintiff appeals from an order of the Supreme Court, Kings County, dated October 30, 1963, which granted the motion of the defendant Arnold Chait, Ltd., to open its default and to vacate a default judgment in plaintiff's favor against it; the motion being granted on condition that it pay to plaintiff the sum of $50 costs. Order modified as follows: (1) by striking out its three decretal paragraphs; and (2) by substituting therefor a decretal paragraph granting said defendant's motion to the extent of opening its default and permitting it to answer or otherwise move with respect to the complaint, on condition that it pay $50 costs to the plaintiff and on the further condition that the judgment shall stand as security pending the final disposition of the action. As so modified, the order is affirmed, without costs. The time of said defendant to answer or otherwise move is extended until 20 days after entry of the order hereon. In our opinion, under the circumstances disclosed by this record, Special Term properly determined that the defendant's default was excusable and should be opened. However, it was an improvident exercise of discretion not to impose, as a further condition to the granting of such relief, that the judgment shall stand as security pending the final disposition of the action. Beldock, P.J., Christ, Brennan, Rabin and Hopkins, JJ., concur.