Summary
In New Amsterdam Cas. Co. v. Augner (262 App. Div. 113), a default judgment was vacated on condition that the defendant stipulate that the testimony of a witness who had died since the inquest be read upon the trial in behalf of the plaintiff.
Summary of this case from Green v. BrunettiOpinion
June 18, 1941.
Appeal from Supreme Court of New York County, EDER, J.
Joseph F. Lenihan of counsel [ Frederick Mellor, attorney], for the appellant.
Stanley Rosenthal, for the respondent.
Present — MARTIN, P.J., TOWNLEY, DORE, COHN and CALLAHAN, JJ.
Plaintiff appeals from an order vacating, upon terms, a judgment entered on inquest. The application to open the default sought the favor of the court and, therefore, irrespective of whether under the present circumstances the right of plaintiff to use, without defendant's consent, testimony of the witness who had died since the taking of the inquest is sanctioned by law (See Bradley v. Mirick, 91 N.Y. 293), we feel that the court should have required the defendant to stipulate that such testimony might be used as a condition to opening the default.
The order should be modified by providing that the default is opened on condition that the defendant, within five days, stipulate that the testimony of Charles Yezek given upon the inquest taken herein, be read upon the trial in behalf of plaintiff; and that in the event of the failure to file such stipulation, the motion to open the default be denied, and as so modified affirmed.
Order unanimously modified as indicated in opinion, and as so modified affirmed. Settle order on notice.