Opinion
June 11, 1962
In a negligence action to recover damages for injuries to person and property, the defendant Barnes appeals from an order of the Supreme Court, Nassau County, dated February 19, 1962, which denied his motion to set aside a default judgment entered against him, and to permit him to interpose an answer or otherwise move with respect to the complaint. Order reversed, without costs; and motion granted, without costs, upon condition that, within 10 days after the service of a copy of the order to be entered hereon, defendant Barnes shall serve his answer and pay the sum of $300 to plaintiffs and their attorneys for the expenses incurred and the services rendered by reason of his default. In our opinion, the alleged carelessness of the moving defendant's insurance carrier in losing the copy of the summons and complaint served upon such defendant should not be attributed to him. In view of the fact that plaintiffs have had to take an inquest against him, the plaintiffs and their attorneys should be recompensed to the extent of $300 for their extra expenses and work. The opening of this defendant's default should not seriously prejudice plaintiffs in the prosecution of the action, since the action is still at issue as to the codefendant Seidito, and since both defendants are represented by the same insurance carrier. Kleinfeld, Acting P.J., Brennan, Hill, Rabin and Hopkins, JJ., concur.