Glickman v. Loew

29 A.D. 479 | N.Y. App. Div. | 1898

Ingraham, J.:

The action was brought to recover damages for false imprisonment, the amount claimed in the complaint being $10,000. The defendant failed to answer and the plaintiff took judgment, the damages having been assessed by the sheriff’s jury at the full amount claimed. The judgment was entered on February 1, 1898, and this motion was made on February twenty-fourth to open the default and allow the defendant to answer. It appears that the defendant employed an attorney owing to whose default it is alleged that there was a failure to answer. The court opened the default upon the payment of the costs and upon the defendant’s filing a bond with sufficient surety for the payment of any damage which might be recovered against him. We do not think that the court should have required the defendant to give a bond for the payment of any judgment that should be obtained. The action being to recover *480unliquidated damages for false imprisonment the amount claimed in the complaint had no relation to the amount that the plaintiff would be entitled to recover if he recovered at all; and nothing appeared in the motion papers to justify the court in compelling a defendant to give a bond in the amount of $10,000 as a condition for allowing a defendant to defend a claim of this character. We think the plaintiff will obtain all the security to which he is entitled by allowing the judgment heretofore entered to stand as security.

The order appealed from will, therefore, be modified so as to open the defendant’s default and allow the defendant to serve an answer upon payment of the costs provided for in the order appealed from, and upon condition that the judgment heretofore entered in this action stand as security for any judgment that the plaintiff may ultimately recover.

The order as thus modified is affirmed, without costs to either party of this appeal.

Patterson, Rumsey and O'Brien, JJ., concurred.

Order modified so as to open default and allow defendant to serve an answer upon payment of the costs provided for in the order appealed from, the judgment heretofore entered to stand as security ; as so modified, order affirmed, without costs.