151 A.D. 928 | N.Y. App. Div. | 1912
The order appealed from should be modified so as to provide that the default of the -defendant be so far opened as to allow the defendant to try the action upon condition that within ten days after service of a copy of the order to be entered hereon, the defendant pay the costs of the action to date and ten dollars costs of opposing the motion, and that upon payment thereof, the case be restored to the calendar to be tried when reached; and upon the further condition that the plaintiff have leave to enforce the judgment as now entered unless the defendant shall give an undertaking as required by law to stay proceedings upon appeal, and if such costs as hereinbefore provided are not paid, that the motion to open the default is in all respects denied, with ten dollars costs, and the stay contained in the order to show cause vacated. As so modified the order appealed from is affirmed, without costs. Present — Ingraham, P. J., Laughlin, Clarke, Miller and Dowling, JJ. Order modified as directed in opinion, and as modified affirmed, without costs. Order to be settled on notice. ' .
