Opinion
November 5, 1984
Appeal from the Surrogate's Court, Dutchess County (Benson, S.).
Decree reversed, on the law and in the exercise of discretion, without costs or disbursements, and matter remitted to the Surrogate's Court, Dutchess County, for further proceedings consistent herewith.
A review of the entire record convinces us that it was an improvident exercise of discretion to deny appellant's application to vacate his default (see Smith v Waldbaum's Supermarket, 99 A.D.2d 530; Matter of Kline, 59 Misc.2d 27). Further, the merits may only be resolved following a hearing (see SCPA 1808, subd 5; Matter of Starr, 86 A.D.2d 829). Titone, J.P., Lazer, Bracken and Boyers, JJ., concur.