Opinion
December 7, 1953.
In an action to recover damages for personal injuries, plaintiff appeals from an order granting defendant's motion to open his default in pleading and to vacate the judgment entered thereon after inquest before the court. Order modified by striking from the second ordering paragraph the words "be and the same is hereby vacated and set aside" and by substituting therefor the words "stand as security until the final determination of the action"; and by striking out the third ordering paragraph. As so modified the order is affirmed, with $10 costs and disbursements to appellant. Since the default was not willful, in the circumstances of this case it was proper to open the default and allow defendant to have his day in court. In our opinion, however, it was an improvident exercise of discretion to grant such relief without the imposition of the terms provided hereby. Adel, Acting P.J., Wenzel, MacCrate, Schmidt and Beldock, JJ., concur.