Crowe v. Sale , 277 A.D.2d 773 ( 1950 )

This is an appeal from an order denying a motion by appellants to vacate a judgment allegedly procured by fraud and perjury, and, in any event, to do justice in the premises. This court finds no proof of fraud or perjury but it does affirmatively appear that the determination of the trial court was made without all material facts in the case having been disclosed to it and upon findings which may not, therefore, be supported. This occurred, not through the fault of the court, but due to the fact that appellants refused to proceed with the trial upon being denied an adjournment. The trial court thus heard only so much of the action as was required to establish a prima facie ease. We have previously passed, adversely to appellants, upon the question as to whether, under the circumstances, this constituted a default judgment. (Crowe v. Sale, 275 App. Div. 719, motion for leave to appeal to the Court of Appeals denied 275 App. Div. 782, 299 N. Y. 797.) However, since the form of the findings and judgment constitute a severe condemnation of the professional conduct of appellants without any testimony having been offered in their behalf, and it appearing that their defense may have merit, we believe that in the general interests of justice, a trial of the issues should be had, at which both sides of the controversy may be heard. Since the necessity of such a retrial was occasioned by the mistake and obduracy of appellants such relief will be granted only upon the payment by them to respondents of the sum of $1,000 counsel fee and all costs to date. Resettled order reversed, without costs, and motion granted, without costs, on condition that within ten days from the entry of the order hereon appellants pay to respondents the sum of $1,000 for the latters’ counsel fees and, in addition, all costs to date; otherwise, the order is affirmed, with $10 costs and disbursements. Carswell, Acting P. J., Johnston, Adel, Wenzel and MacCrate, JJ., concur. [See post, p. 900.]