Ivens Sherr and David Sherr, Copartners Doing Business under the Firm Name and Style of Sherr Bros., Appellants, v. Louis Shapiro, Respondent

Ivens Sherr and David Sherr, Copartners Doing Business under the Firm Name and Style of Sherr Bros., Appellants, v. Louis Shapiro, Respondent. [MAJORITY] Order and order as resettled denying plaintiffs’ motion to open default and vacate judgment reversed on the law and the facts, without costs, and the motion granted, without costs, upon the condition that the plaintiffs furnish a bond, with corporate surety, for the amount of the judgment, and pay to the defendant fifty dollars; in default of compliance within five days with these terms the orders will be affirmed, with ten dollars costs and disbursements. The circumstances surrounding the default herein seem to indicate that the default was not willful or intentional. The plaintiffs, however, were not without fault, in that they failed to substitute their new attorney for the attorney of record, which would have avoided the very situation that ensued as a consequence of the going astray of the notice of restoration sent to plaintiffs’ former attorney of record. Lazansky, P. J., Kapper, Hagarty, Carswell and Davis, JJ., concur.