Alex Piercey Co. v. Mulkiewicz

Order denying defendant Mulkiewicz’s motion to open his default in pleading reversed upon the law and the facts, without costs, and motion granted upon condition (1) that defendant Mulkiewicz serve his answer within three days after the entry of the order; (2) that the date of issue remain unchanged; (3) that he proceed without further notice to the trial of the issues involved in his pleading in the reference now pending before the official referee; and (4) that he pay fifty dollars as terms to defendant Szczesny. The order of the Special Term is technically correct, but in view of the character of the situation herein and in furtherance of justice (Civ. Prae. Act, § 584)* we will deem to have been granted, or so far as necessary grant, permission to defendant Mulkiewicz to renew the motion which had been denied, and upon such renewal grant the motion to open the default and allow defendant Mulkiewicz to plead. This course is pursued because it is the most practical method of disposing of all the controversies affecting this building operation, since they may be thus disposed of in the action which is now pending under circumstances that involve no prejudice to the respondent herein or any other party litigant, especially since the time within which defendant Mulkiewicz might begin an action on his counterclaim has not expired. Lazansky, P. J., Kapper, Carswell, Seudder and Davis, JJ., concur.