Opinion
February 13, 1962
In a negligence action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Queens County, dated October 9, 1961, which granted plaintiff's motion to vacate a default judgment entered July 21, 1961, dismissing the complaint, and to restore the action to the Ready Day Calendar for trial. Order modified by adding thereto a provision that, as a condition to the granting of the motion and to the vacation of the judgment and the restoration of the action to the calendar for trial, plaintiff shall pay to defendant the sum of $100. As so modified, the order is affirmed, without costs. While plaintiff was entitled to the relief granted, nevertheless under the circumstances disclosed by the record before us defendant is also entitled to be reimbursed, to the extent of $100, for the extra expense and work to which he and his attorney have been put by reason of plaintiff's default in appearing for trial on the adjourned day. Payment of this sum should be made before the judgment is vacated and the action restored for trial. Beldock, P.J., Ughetta, Kleinfeld, Christ and Brennan, JJ., concur.