Pikap S.R.L. v. Hollis

Order, Supreme Court, New York County, entered January 31, 1972, unanimously modified, on the law and in the exercise of discretion, to provide that, as a condition of the opening of defendant’s default, the existing judgment, including the lien of execution thereunder and proceedings thereon to date, stand as security for any recovery by plaintiffs in this action, or in lieu of the judgment standing as security, the defendant may file an undertaking to secure any recovery by the plaintiff in this action; and to further provide that the defendant, within 30 days after entry of order hereon, shall pay all Sheriff’s fees, including poundage, incurred to date and the costs and disbursements of this appeal; and order otherwise affirmed. Plaintiffs-appellants shall recover of defendant-respondent $30 costs and disbursements of this appeal. As a matter of law, it is proper to impose the aforesaid conditions on a granting of the defendant’s motion, and, under the circumstances of this case, a proper exercise of *663discretion requires such conditions. (See CPLR. 5015; Benson v. Manning, 20 A D 2d 547; Gallo v. Bubbley, 20 A D 2d 519; Pacific Northern Fence Corp. v. Allied Fabricators, 19 A D 2d 541.) Settle order on notice. Concur — Markewich, J. P., Kupferman, Eager and Capozzoli, JJ.