Appeal by plaintiff from an order vacating on terms a judgment rendered by *530default against defendant. The question here is whether the trial court abused its discretion in granting the relief. We are all agreed that defendant offered but a lame excuse for failing to give attention to the summons and complaint served, but a majority of the court is of the opinion that under the well known rules governing the action of this court in such cases, the order appealed from should be affirmed.

The action is in tort, by a tenant against his landlord, for alleged negligence that is claimed to have caused a fire which destroyed and damaged personal property belonging to plaintiff. The damages, of course, were unliquidated, and conceding that the complaint states a cause of action, a court is naturally reluctant not to permit a trial upon the merits whenever any reasonable showing of mistake, surprise or excusable neglect is made. Our conclusion is that there was no abuse of discretion in opening the default, but under the circumstances no statutory costs will be allowed on this appeal.

Order affirmed.