Mitzas v. Spector

This cause, after a new trial had been granted, was, by an order entered April 13, 1925, directed to be placed upon the next trial calendar. For some unexplained reason plaintiff’s counsel did not present this order to the calendar clerk until May sixth. It was then placed upon the calendar for June 1, 1925, instead of the calendar May 1,1925. (See Rules of the City Court of the City of New York, rule 14.) Since it was thus irregularly upon the calendar defendants were entitled to have their resulting default opened without terms, and the order appealed from is modified accordingly.

Order modified by striking therefrom all conditions for the payment of costs, and order as so modified affirmed, with ten dollars costs and disbursements to appellants to abide the event.

All concur; present, Guy, Bijur and Mullan, JJ.