Opinion
November 4, 1927.
Appeal from Supreme Court of New York County.
Samuel L. Zuckerman, for the appellant.
Benjamin F. Schwartz of counsel [ Charles W. Philipbar, attorney], for the respondent.
As stated in the appeal from the order granting judgment upon the pleadings in this action ( Kappelmeier v. Newton Garage, Inc., No. 1, 221 App. Div. 564), the counterclaim is valid and entitles the defendant to a judgment thereon in the absence of a reply.
It follows that the order denying the defendant's motion for a judgment on the counterclaim should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs, directing judgment for defendant on the counterclaim, with leave to the plaintiff within ten days to open his default and serve a reply upon payment of said costs and the costs of the action to date.
DOWLING, P.J., McAVOY, MARTIN and O'MALLEY, JJ., concur.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, with leave to the plaintiff to reply within ten days from service of order upon payment of said costs and the costs of the action to date.