Opinion
June 5, 1914.
Samuel Dickstein, for the appellant.
Israel Ben Scheiber [ Samuel Kahan with him on the brief], for the respondents.
The plaintiff appeals from an order of the County Court of Kings county opening defendants' default upon payment of ten dollars costs and restoring the action to the calendar for trial, the judgment entered upon said default to stand as security. On March 20, 1914, this action, which is brought to foreclose a mechanic's lien, was transferred from the general to the reserved calendar and set for trial for March twenty-fifth following, and a copy of the order was duly served on defendants' attorney. On March twenty-second plaintiff's attorney was notified by the chief clerk of the court that the trial must be adjourned to the twenty-seventh. On March twenty-fourth a clerk in the office of defendants' attorney asked the plaintiff's attorney if the action would be on the day calendar for the following day — March twenty-fifth — and was informed of the notice received from the clerk and told that the action would be on the day calendar on March twenty-seventh, and that the plaintiff and his attorney would be ready to proceed at that time and that a letter had already been mailed to that effect. On the twenty-seventh plaintiff and his attorney waiting an hour and no one appearing for the defendants, a default and inquest was taken and judgment accordingly entered on March thirtieth for the relief demanded in the complaint.
The only excuse for suffering the default is that a clerk in the office of the attorney for the defendants saw in a paper on the morning of March twenty-fifth a statement that the reserved calendar, to which he assumed the action had been transferred, had been passed until April 6, 1914. While the defendants should not be compelled to suffer in consequence of the negligence of counsel and should be permitted to try their case on the merits ( Girards v. Rosencrans, 157 App. Div. 326; Fennell v. Reinhardt, 130 id. 444), the terms imposed by the learned County Court for opening the default are wholly inadequate. Justice to the plaintiff requires that as a condition of opening such default the plaintiff should be fully indemnified by the payment of the costs and disbursements included in said judgment.
The order must, therefore, be modified so as to make the opening of the default conditional upon the payment of the trial fee, thirty dollars, and ten dollars costs of the motion, and as so modified affirmed, with ten dollars costs and disbursements to the appellant.
JENKS, P.J., BURR, STAPLETON and PUTNAM, JJ., concurred.
Order of the County Court of Kings county modified so as to make the opening of the default conditional upon payment of the trial fee, thirty dollars, and ten dollars costs of the motion, and as so modified affirmed, with ten dollars costs and disbursements to the appellant.