Gurwitz v. Vim Electric Co. , 11 Misc. 2d 890 ( 1958 )

Per Curiam.

Upon the record presented, it does not appear that the default was willful; rather, if service was made, it was an excusable default. Although the alleged service of the third-party summons and complaint was made on July 24, 1950, the case was tried on May 25, 1956, nearly six years later. George Sheridan, the person upon whom the alleged service was made, is now deceased. His precise habits in forwarding all process served upon him to the office of the corporation’s attorney, when considered in connection with the process server’s affidavit that he has no independent recollection of this particular service, is sufficient ground for opening the default upon proper papers.

The order should be reversed, with $10 costs, only to the extent of granting leave to third-party defendant Garod to renew the original motion insofar as it seeks to open its default and he permitted to appear and plead therein upon proper papers, including a copy of the proposed answer; otherwise affirmed.

Appeal from order of July 16, 1956 should be dismissed, as the required permission was not obtained.

Hecht, J. P., Aurelio and Tilzer, JJ., concur.

Order reversed, etc.