Clement v. White's Express Co.

Upon a reargument, our attention has been called to the fact that the order opening the default of the defendant failed to vacate the judgment, while at the same time directing that the defendant deposit the amount of the judgment with the clerk of the court, and also directing that upon failure to comply with the said requirements the defendant pay the sum of $10 costs. The order in such a form was unauthorized. The judgment should have been vacated and set aside (Dorfman v. Hirschfield, 53 Misc. Rep. 538, 103 N. Y. Supp. 698), and costs upon failure to comply with the terms of the order should not have been imposed (Thompson v. Hudson Building Co., 59 Misc. Rep. 510, 110 N. Y. Supp. 1077; Lee v. Revolving Airship, 127 App. Div. 36, 111 N. Y. Supp. 28; Klotz v. Frolich, 108 N. Y. Supp. 1023).

The appeal from the judgment and order of May 27, 1909, is dismissed. The order opening the default is modified, by directing that the judgment be vacated and set aside, and that the defendant’s default be opened, and the .case set down for trial upon depositing with the clerk of the Municipal Court the amount of the judgment within five days; otherwise, the motion to open the default is denied, without costs, and the order, thus modified, affirmed, without' costs to either party in this court.