Opinion
June, 1898.
Abraham B. Schleimer, for appellant.
Joel Krone, for respondent.
This appeal is taken from an order made by the justice below opening the plaintiff's default incurred by reason of his failure to proceed with the trial. The justice considered that the default was sufficiently excused, and we see no reason for disturbing his conclusion in that regard. It appears, however, that he has failed to recite in the order the grounds upon which it was made, and he is required to do by chapter 748 of the Laws of 1896. This would ordinarily call for a reversal. Colwell v. Devlin, 20 Misc. 355. The justice, however, in making his return fully sets forth such grounds, and further certifies that the order in question was prepared and submitted to him for signature by the attorney for the defendant, who now appeals from the same. The indorsement upon the back of the order also shows that it was prepared and submitted by him. This was a somewhat extraordinary proceeding, and might well be regarded as a waiver of the objection which has been made. But without regard to that, we think we have the power and have concluded to modify the order by the insertion of a recital embodying the statement made by the justice below of the grounds upon which he proceeded.
Order modified as above stated, and as so modified affirmed, without costs.
Present: BEEKMAN, P.J., GILDERSLEEVE and GIEGERICH, JJ.
Order modified, and as modified affirmed, without costs.