Appellate Terms of the Supreme Court of New York, 1958

Davis v. Bisgeier

Appellate Terms of the Supreme Court of New York · Decided November 26, 1958

17 Misc. 2d 149; 183 N.Y.S.2d 917; 1958 N.Y. Misc. LEXIS 2286

Counsel

Gerald Davis, appellant in person., John J. O’Connor and Richard H. Huber for respondent.

Opinion of the Court

Per Curiam.

Defendant is obviously guilty of not responding to the notice of examination and relying on the reluctance of the court to strike his answer without giving him an additional chance to appear. A default deliberately incurred should not be opened without the imposition of costs. (Petersdorf v. O’Hagan, 286 App. Div. 1100.)

The order should be modified by imposing $10 costs of motion and as so modified affirmed, with $10 costs.

Concur — Heoht, J. P., Steuer and Tilzer, JJ.

Order modified, etc.

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