Merchants Mutual Insurance v. Magee

Order unanimously modified, without costs, to the extent of remanding the case to Erie Special Term for assessment of damages upon notice to defendant. Memorandum: Special Term correctly decided that appellant failed to excuse his default and also failed to show facts which would constitute a meritorious defense. In view of defendant’s claim that plaintiff’s complaint did not state a claim for a sum certain or which by computation could be made certain because it failed to allege the amount of commissions and charges to be deducted from premiums collected, Special Term, in a proper exercise of discretion, should have made a reassessment of damages upon notice to defendant. (Appeal from order of Erie Special Term denying motion to open -default.) Present — Williams, P. J., Bastow, Marsh, Witmer and Henry, JJ.