| N.Y. App. Div. | Jan 15, 1935
— The defendants, evidently being in default in pleading, served an answer after time for service thereof had expired and it was returned with the notation that the time to answer had expired. Then the defendants claimed that the summons and complaint had been served on them on a day later than that stated in the affidavit of service and sought to compel the acceptance of the answer. It was practically a motion to open a default, and is so recognized in the order granted. The answer is a general denial of the facts stated as based chiefly on the contents of a deed. There is no affidavit of merits. However, the defendants may have some equitable defenses and should have the right to contest the amount of damages claimed by the plaintiff. Under the circumstances terms should be imposed on the defendants in opening the default. Order modified by providing that the default shall be opened on condition that the defendants pay twenty-five dollars costs, with leave to serve an answer within ten days from the date of the entry of the order herein, and as so modified the order is affirmed, with ten dollars costs and disbursements to appellant. In case the defendants fail to comply with the conditions above stated and serve their answer within ten days, the order is reversed on the law and the facts, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs. Lazansky, P. J., Young, Carswell, Davis and Johnston, JJ., concur.