192 A.D. 81 | N.Y. App. Div. | 1920
The failure to answer the call of the calendar on behalf of the defendant, which resulted in a judgment in favor of the plaintiff, was caused by negligence of the clerks of the defendant’s attorneys, and was not a willful default of, the defendant. When the defendant’s attorneys requested the plaintiffs’ attorneys to open the default most onerous and unconscionable terms were sought to be imposed. Upon granting the defendant’s motion the court imposed these terms:
The order appealed from will be modified by striking therefrom subdivision 3, which requires a stipulation to try the issues before a referee, and inserting in lieu thereof that the case- be restored to the trial calendar and may be placed upon the day calendar for trial on two days’ notice, with ten dollars costs and disbursements to the appellant,
Clarke, P. J., Laughlin, Dowling, Page and Greenbaum, JJ., concur.
Order modified as indicated in opinion, and as so modified affirmed, with ten dollars costs and disbursements to appellant.