245 A.D. 787 | N.Y. App. Div. | 1935
Appeal by the defendants, appellants, from an order of Albany County Special Term, entered in the office of the clerk of Rensselaer county, granting the motion made by the defendant, respondent, Sears, to open his default in pleading and to be permitted to serve pleadings. The action was commenced about April 4, 1933, by plaintiff for the foreclosure of a certain mechanic’s lien against the premises of the appellants Shanley. The respondent Sears had a contract with the owners for the erection of a building on the premises. The appellants interposed an answer and served a copy thereof upon the respondent on May 31, 1933. The respondent made no effort to serve any pleading until January 9, 1935, when he obtained an order to show cause why his default should not be opened and he should not be permitted to serve pleadings herein. Upon the return of said order to show cause the order herein appealed from was granted, upon condition that respondent pay to the attorney for appellants twenty-five dollars as costs of the motion, and file a bond conditioned for the payment of any judgment for costs that may hereafter be awarded herein against the respondent and in favor of the appellants. It was conceded upon the argument of this appeal that no delay has been caused in the prosecution of the action by said motion and order. Order unanimously affirmed without costs. Present — Hill, P. J., Rhodes, Crapser, Bliss and Heffernan, JJ.