Opinion
October 28, 1963
In an action to recover upon a series of promissory notes, defendant appeals from an order of the Supreme Court, Westchester County, entered February 21, 1963, which denied his motion: (a) to vacate his default on plaintiff's prior motion for summary judgment; and (b) to vacate the order, entered September 7, 1960 granting such motion and the judgment thereon, entered September 22, 1960. Order appealed from reversed, without costs; defendant's motion is granted to the extent of vacating his default and the order entered September 7, 1960 and permitting defendant to oppose the plaintiff's motion for summary judgment on the merits, upon the condition that the judgment shall remain a lien as security for any recovery which may finally be had against the defendant in the action; and action remitted to the court below for further proceedings not inconsistent herewith. In our opinion the defendant has given a satisfactory reason for his default and should be allowed to oppose the plaintiff's motion for summary judgment on the merits. Beldock, P.J., Kleinfeld, Brennan, Rabin and Hopkins, JJ., concur.