POMARES v. DUNCAN

POMARES v. DUNCAN. N. Y. Supreme Court, First District, Special Term; June, 1890. 1. Default; terms impon opening" Where a defendant has taken judgment upon a counterclaim on plaintiff's default, the court may-on opening such default and allowing plaintiff to proceed to prove his cause of action, in addition to other terms imposed, direct the judgment on the counterclaim to stanci, with the right to either party to move as to it upon determination of plaintiff’s cause of action. Motion by plaintiff to open default. The action was brought by Manuel Pomares against William B. Duncan for breach of contract and an accounting. Defendant set up a counterclaim, and upon the cause being reached for trial took judgment upon an inquest establishing such counterclaim. F. IF. Angel, for plaintiff and motion. Robert S. Minturn, for defendant, opposed. See note to last case. [MAJORITY — Ingraham, J.] Ingraham, J. The default is so far opened as to allow plaintiff to proceed and prove the cause of action set up in the complaint before the referee heretofore appointed, on condition that plaintiff pay to defendant costs after notice of trial, $30 trial fee and $10 costs of the motion, and give a bond in the sum of $250 to pay the costs of such trial if he is defeated; the judgment on defendant’s counterclaim to stand, with right to either party to make such a motion as to such a judgment on the decision of the question as to the plaintiff’s right to recover on his cause of action set up in the complaint, as he shall be advised. If these conditions are not accepted, motion denied, with $10 costs.