Pearlson v. Javitz , 20 A.D.2d 550 ( 1963 )

In an action by the defendant’s three sisters to impress a trust on certain assets in her possession which are alleged to be properly a part of the estate of their deceased father, the defendant appeals from an order of the Supreme Court, Kings County, dated December 21, 1962, which denied her motion to vacate: (1) an inquest taken against her upon her default; and (2) the judgment entered December 4, 1962 on the decision of a Special Referee following such inquest before him. Order affirmed, with $10 costs and disbursements. In our opinion, the default was not “ due to mistake, inadvertence, surprise or excusable neglect,” but was willful. Hence, the Special Term properly exercised its discretion in denying the motion (cf. Heller v. Ward, 10 A D 2d 633). [Por prior appeal from the judgment, see 19 A D 2d 729.] Beldock, P. J., Ughetta, Kleinfeld, Rabin and Hopkins, JJ., concur.