Opinion
October 16, 1951.
Present — Peck, P.J., Glennon, Dore, Callahan and Van Voorhis, JJ.
On all the facts and circumstances disclosed, the trial court in the exercise of sound discretion should not have forced trial of defendant's defenses in the absence of plaintiff who had a reasonable excuse and thereafter should not have dismissed the complaint and granted judgment for defendant, although defendant had admitted the material allegations of the complaint. Order denying plaintiff's motion to open the default unanimously reversed, with costs to the appellant, and plaintiff's motion granted and judgment of dismissal vacated and the case set down for trial at Special Term, Part III, at a date to be fixed in the order to be settled herein. Settle order on notice.