Goldstein v. Notinger

Order entered October 6, 1969 unanimously modified on the law and on the facts, and in the exercise of discretion, and the motion for vacatur of the default granted to the extent of vacating the judgment and reopening the trial and remanding the ease to the Trial Justice to continue the trial on the sole issue of the extent of the relief to which plaintiff-respondent is entitled, on condition that, within 20 days after service of a copy of the order entered hereon, defendant-appellant shall pay to plaintiff-respondent a full bill of costs to date and $250 costs in addition thereto, and, within 20 days of taxation thereof, shall also pay $30 costs and disbursements of this appeal, which are awarded to plaintiff-respondent, and otherwise affirmed. Upon failure to comply with the conditions herein stated within the times limited therefor, the motion to vacate shall be denied and the judgment shall stand. Though defend*903ant has given no indication o£ a meritorious defense to this action, it appears prima facie and without additional proof that the relief afforded plaintiff exceeds that to which he would be entitled. Therefore, both parties will be given an opportunity to develop the issue, on the one hand to justify that which was awarded on inquest and, on the other, to limit the relief. However, because defendant’s default has flowed entirely from his own neglect, the foregoing conditions are imposed. Concur — Capozzoli, J. P., Markewich, Steuer and Tilzer, JJ.