Vincent v. Flanagan

This is an action for the recovery of the damages sustained by the plaintiff by reason of the explosion of powder or dynamite. It was commenced in the city court of Yonkers, and the defendant omitted to employ a lawyer until his time to answer had expired. Judgment was taken by default, and then a motion was made to open the default and for permission to defend. The motion was denied in the city court and their appeal is from that order. Our view is that the discretion of the city court was not wisely exercised; the defendant was well excused, and the action is one that may well admit of a defense and the defendant should have an opportunity to defend the same.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion should be granted on payment of costs rendered in the judgment.

Barnard, P. J., and Cullen, J., concur.