Renate Welkovich, Respondent, v. Andrew Welkovich, Defendant, and Josef Welkovich et al., Appellants

Renate Welkovich, Respondent, v. Andrew Welkovich, Defendant, and Josef Welkovich et al., Appellants. [MAJORITY] In an action to impose a constructive trust upon title to real property and to invalidate a bond and mortgage for lack of consideration, defendants Josef Welkovioh and Margaret Welkovioh appeal from an order of the Supreme Court, Queens County, dated December 11, 1973, which denied their motion to vacate a default judgment entered October 19, 1973 upon their failure to appear for trial. Order reversed, without costs, motion granted, judgment entered October 19, 1973 vacated insofar as it is against defendants Josef Welkovioh and Margaret Welkovioh and the case is restored to the Trial Calendar and consolidated with the case against defendant Andrew Welkovioh, upon condition that, within 10 days after service of the order to be entered hereon, with notice of entry, the attorney for defendants Josef Welkovioh and Margaret Welkovioh personally pay $100 costs to plaintiff. Otherwise order affirmed, with $20 costs and disbursements. We have concluded that under the facts presented in this case, including the circumstances leading to the failure of counsel for defendants Josef and Margaret Welkovieh to proceed to trial and the onerous consequences of the default judgment to these defendants, this case as against said defendants should be restored to the calendar for trial upon the condition stated hereinabove. Gulotta, P. J., Hopkins, Martuscello, Latham and Christ, JJ., concur.