Renate Welkovich, Respondent, v. Andrew Welkovich, Appellant, et al., Defendants

Renate Welkovich, Respondent, v. Andrew Welkovich, Appellant, et al., Defendants. [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, defendant Andrew Welkovich appeals from an order of the Supreme Court, Queens County, dated November 12, 1973, which denied his motion to be relieved of his default in appearing for trial. Order reversed, without costs, motion granted, judgment entered October 19, 1973 vacated insofar as it is against defendant Andrew Welkovich and the case is severed and restored to the Trial Calendar as to said defendant, upon condition that, within 10 days after service of the order to be entered hereon, with notice of entry, the attorney for defendant Andrew Welkovich 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 defendant Andrew Welkovieh’s counsel to proceed to trial and the onerous consequences of the dismissal to this defendant, this ease should be restored to the calendar for trial as to him, upon the condition stated hereinabove. Hopkins, Acting P. J., Martuscello, Latham, Brennan and Benjamin, JJ., concur.