Boros v. Mayo , 8 Misc. 2d 949 ( 1957 )

Per Curiam.

The imposition of the condition for the opening of the default which deprived defendants of a trial by jury was an abuse of discretion (Gluech v. Tull, 192 App. Div. 81; Zeesell Realty v. Cunningham, 125 Misc. 444). The defendants in these circumstances did not absolutely waive the right to an examination before trial.

The order should be modified by striking therefrom the provision imposing conditions, and as modified affirmed, without costs. The cross appeal of the plaintiff should be dismissed.

Hecht, Aurelio and Tilzer, JJ., concur.

Order modified, etc.