Braverman v. Monterey Operating Corp. , 246 A.D. 735 ( 1935 )

Order denying motion made by appellants to open their default in appearing for trial and to restore the case to the calendar for trial reversed on the law and the facts, without costs, and motion granted upon payment of fifty dollars costs to plaintiff-respondent. The practice, adopted by appellants, of moving at Special Term to open their default and to restore the case to the calendar for trial, was in accordance with the rule stated by this court in Mott v. Mott (134 App. Div. 569); Nosner v. Brooklyn Heights Railroad Co., No. 2 (181 id. 885), and Woolf Instrument Corporation v. Woolf (215 id. 791). The record does not reveal that Mrs. Rowley’s illness was feigned, nor that she was not a material and necessary witness. It appears that appellants may have a good defense, and should have the right to a trial, but upon terms as above stated. Lazansky, P. J., Scudder, Tompkins, Davis and Johnston, JJ., concur.