Clark v. Carmen Air Conditioning Corp. , 2 A.D.2d 640 ( 1956 )

Appeal from an order of the Supreme Court at Special Term entered in Cortland County vacating a prior order setting aside a default judgment entered against appellant. Respondents urge that this submitted appeal should be deemed dismissed for failure of appellant to comply with a decision of this court dated March 21, 1956, and an order entered thereon, which dismissed this appeal unless appellant should file and serve the papers on appeal on or before March 30, 1956, and he ready for argument on April 5, 1956. The papers on appeal were not filed until April 4, 1956. Respondents show no prejudice by the short delay and, in fact, have furnished us with a brief covering the merits of the controversy. Therefore, we have decided to modify, nunc pro tunc, our decision of March 21, 1956, by extending appellant’s time to file and serve the papers on appeal to April 4, 1956. By a memorandum opinion dated September 10, 1954, Special Term vacated a default judgment entered against appellant and attached several conditions thereto. On July 7, 1955, no order on said memorandum opinion having been entered by the appellant, respondents served motion papers seeking to vacate the decision permitting the reopening of the default. Before the return date of the motion, appellant entered the order with the County Clerk and complied with the conditions enumerated. However, Special Term held that the delay in entering the order was inexcusable and granted an order vacating the order setting aside the default judgment. While we do not approve of the delay in entering the order, we believe that appellant’s failure to promptly enter the order should not result in depriving it of the opportunity to present its defense and counterclaim in court. Appellant should be responsible for no further delay in reaching a judicial determination of the issues and should be ready to proceed when the action is moved for trial. Order appealed from reversed, on the law and facts, with $20 costs and disbursements payable to respondents, and motion denied, without costs. Poster, P. J., Coon, Halpern, Zeller and Gibson, JJ., concur.