| N.Y. App. Div. | Nov 15, 1935
Order granting, on reargument, the defendant-respondent’s motion and vacating a judgment as to him, opening his default and permitting him to appear and answer reversed on the law and the facts, with twenty-five dollars costs and disbursements each to the plaintiff and guardian ad litem, and motion denied, with ten dollars costs. It was incumbent upon the defendant to show “ good cause ” to permit him to open his default and defend nearly two years after entry of judgment (Civ. Prac. Act, § 217). Not only did he fail to present any evidence tending to establish acts of omission or commission on the part of the plaintiff in the administration of the trust, but it is undenied that every transaction of which complaint is made was predicated upon the express instructions or consent of the settlor, who created this trust, pursuant to the terms of the trust agreement. Further, the trust agreement specifically provided that the trustee should not be liable for any transaction so made. Young, Hagarty and Davis, JJ., concur; Lazansky, P. J., and Tompkins, J., dissent and vote to modify the order by imposing the payment of all taxable costs and disbursements to date as a condition for opening the default, and, as so modified, to affirm the order.