Opinion
October 23, 1936.
The plaintiff failed to serve his complaint on the defendants within the time prescribed and obtained an order opening his default and was granted five days in which to serve the complaint. The complaint was not served within the time prescribed by the order; and when it was served it was returned by the defendants. Then the plaintiff made a second motion to open his default, which was granted, but no terms were imposed. The reasons given for this second default are scarcely adequate. The courts are liberal in opening defaults to the end that a trial may be had on the merits. The determination usually merely involves the question of terms to be imposed in granting the order. ( Allen v. Fink, 211 App. Div. 411, 415; Baldwin v. Yellow Taxi Corporation, 221 id. 717.) In view of the second default, we are of opinion that terms should have been imposed. Order modified by providing that the default be opened on condition that the plaintiff pay twenty-five dollars costs to the defendant Van Tine Features Syndicate, Inc., and as so modified affirmed, with ten dollars costs and disbursements to the appellants. Plaintiff has leave to serve a complaint within ten days from the entry of the order hereon upon payment of the costs and disbursements as allowed. Lazansky, P.J., Carswell, Davis, Johnston and Adel, JJ., concur.