General
Abram Friedland, Appellant, v. The Commonwealth Fire Insurance Company of Ottumwa, Iowa, Respondent
136 A.D. 6·New York Supreme Court, Appellate Division·1909·NY
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Opinion
Abram Friedland, Appellant, v. The Commonwealth Fire Insurance Company of Ottumwa, Iowa, Respondent.
Second Department,
December 30, 1909.
Practice — oral stipulation.exten.dmg time to answer — opening default — terms.
A verbal stipulation extending the time to answer does not entitle the defendant to an order opening a default against the protest of the other party.
Where a default is opened under such circumstances it is a matter of favor and should only be granted on terms.
Appeal by the plaintiff, Abram Friedland, from an order of the Supreme Court, made at the Kings County Special Teym and entered in the office of the clerk of the county of Kings on the 26tli day of October, 1909.
J. Solon Einsohn, for the appellant.
Edwin T. Taliaferro \E. Bright Wilson with him on the brief],. for the respondent.
[MAJORITY — Jenks, J.:]
Jenks, J.:
This is an appeal from an order of the' Special Term that opens a .default in service of an answer. As the learned Special Term did not impose any terms, we may conclude that it opened the default as a matter of right. (Cohen v. Meryash, 93 N. Y. Supp. 529.) This was error, -inasmuch as the defendant relied upon a verbal stipulation extending its time, which the plaintiff deposes was not given. If it had been made it could not be enforced against the protest of the other party. (Gen. Rules Pr. rule 11 ; Bradford v. Downs, 25 App. Div. 581.) The court then feould have opened this default only as a matter of favor, and we think that it did not act within its discretion when it failed to impose any terms whatever upon the moving party. (See Shenstone v. Wilson, 117 App. Div. 752; Cohen v. Meryash, supra.)
The order is reversed, with ten dollars costs and disbursements, and the motion is denied, with costs; without prejudice to the defendant to make a timely motion to open its default as a matter of favor.
Hirschbero, P. J.,- Woodward, Thomas and Miller, JJ., concurred. •
Order reversed, with ten dollars costs and disbursements, and motion denied, with costs, without prejudice to the defendant to make a timely motion to open its default as a matter of favor: