
    Walter W. Gunther, Respondent, v. American Label Co., Inc., Appellant.
    (Appeal No. 1.)
   Order, in an action for commissions by a salesman against his employer, denying defendant’s motion to vacate judgment as if upon a default and to modify an order dated July 16, 1934, under which it was held in contempt, reversed on the law and the facts, without costs, motion to vacate judgment granted and the defendant permitted to purge itself of contempt upon condition that within five days from the entry of the order herein it pay respondent $250 and submit, through its president, to examination under an order heretofore obtained by plaintiff; examination to proceed on five days’ notice; otherwise, order affirmed, with ten dollars costs and disbursements. The order appealed from was proper in so far as it denied defendant’s motion to vacate or change the order of any judge of co-ordinate jurisdiction. However, the situation herein was such that the defendant should have been accorded relief from the consequences of its attorney’s ineptitude and the confusion arising from a situation that may or may not have involved some degree of contumacy on the part of the defendant. The interests of justice required this and the court was not without power to accord relief on the theory that the judgment which defendant sought to have vacated had been entered against. the defendant under circumstances involving defendant’s “ mistake, inadvertence * * * or excusable neglect ” (Civ. Brae. Act, § 108) and under the inherent power of the court to avoid a miscarriage of justice (Ladd v. Stevenson, 112 N. Y. 325; Hatch v. Central National Bank, 78 id. 487), which theory, authorizing action by the Special Term, was not brought to its attention. This court, in order to avoid remitting the matter to Special Term to hear anew with the three disputed affidavits before it, pursuant to concession on argument, has acted upon the record on the theory that the affidavits are properly before the court on a motion made in accordance with the rules; that is, this court now does that which the Special Term was free to do in the first instance under the theory indicated. Lazan'sky, P. J., Hagarty, Carswell, Tompkins and Davis, JJ., concur. [See, post, p. 529.]  