Sam Wellerstein, Appellant, v. William Tankleff et al., Respondents

Sam Wellerstein, Appellant, v. William Tankleff et al., Respondents. [MAJORITY] In an action for a partnership dissolution and accounting, plaintiff appeals from an order denying his motion to open his default in appearance at trial, and to restore the action to the trial calendar. Order reversed on the law and the facts, without costs, and the motion granted, without costs, on condition that within five days from the entry of the order hereon plaintiff pay to defendants the sum of $25 costs. In the event that such payment he not made, the order is affirmed, with $10 costs and disbursements. The default of the plaintiff on the trial does not appear to have been willful or deliberate, but, apparently, was caused by illness of his attorney. The action will be restored to the trial calendar, to be tried on a date to be fixed on application at Special Term, Part I, Queens County. Hagarty, Acting P. J., Carswell, Johnston, Holán and Sneed, JJ., concur.