
    Julius Johnson’s Sons, Respondents, v. Joseph Buellesbach and Caspar Buellesbach, Appellants.
    (Supreme Court, Appellate Term,
    November, 1907.)
    Default — Opening default — Showing irregularities and excuses.
    Where, on the second day a cause has appeared upon the day calendar and the defendants have been present with their- witnesses to try it, the plaintiff moves to sever the action and obtains an order to show cause and a stay of defendants’ proceedings; and, eight days thereafter, and on the day the decision is announced that the motion is denied, plaintiff enters an ex parte order restoring the case to the head of the day calendar for the next day and serves a copy on defendants’ attorney, who appears the next morning with affidavits showing the facts and his efforts and inability to secure the attendance of his witnesses and requests an adjournment until October, but a few days of the June term remaining before the final adjournment for the summer vacation; and the court imposes as a condition the filing of an undertaking within a certain time and provides for judgment for plaintiff in default thereof; and, in consequence of a misunderstanding between the attorneys for different defendants, the .undertaking is not filed within the time and judgment is entered on the order and the defendants then move to'vacate the judgment, tendering an undertaking in compliance with the order, but their motion is denied; upon appeal from the order denying the motion, the order will be reversed, upon the payment of a trial fee, a term fee and costs of the motion and plaintiff’s disbursements in taking the inquest and entering judgment and upon filing and serving the undertaking.
    Appeal by defendants from an order of the City Court of the city of Hew York denying their motion to set aside the judgment entered against them by default.
    Bennett E. Siegelstein, for Casper Buellesbach, appellant.
    B. A. McDuffie, for Joseph Buellesbach, appellant.
    Theodore Prince (Henry S. Dotterheim, of counsel), for respondents.
   Per Curiam.

The appeals from two orders and the judgment having been dismissed at the opening of the term, the only appeal remaining is the one from the order of Jtily 18, 1907, denying the motion of the defendants to set aside the judgment entered against them by default. An examination of the record convinces us that the entry of judgment was the result of a “ mistake or excusable neglect ” on the part of the attorneys -for the defendants, and that the motion should have been granted. The case appeared on the day calendar on the 18th, 19th and 20th days of June, 1907, and one ofn the defendants was in court with six witnesses each day ready for trial. On June twentieth the case was the eighth on the day calendar. On June nineteenth plaintiffs obtained an order to show cause why the action should not be severed, staying all proceedings on the defendants’ part meantime, and all witnesses were dismissed. But for that application and stay the action would have been tried. The motion to sever the action was denied and, on June twenty-seventh, the memorandum first appeared in the Law Journal. Immediately on that day plaintiffs entered an order ex parte denying the motion and restoring the case to the day calendar, at the head thereof, for the following day. The first intimation defendants had of the entry of that order was when it was served upon them on June twenty-seventh. They appeared in court on the twenty-eighth of June with affidavits showing these facts, and the efforts made by them in the short time allowed to procure their witnesses, and ' their inability to secure the presence of “ two necessary and material witnesses ” in- time for the trial, and requested an adjournment until October. But a few days of the June term before the final adjournment for the summer vacation remained. The court directed the defendants to give an undertaking by July second to pay any judgment that might be entered against them, and the case was thereupon adjourned until October. An order was entered to that effect, reciting defendants’ consent and directing the entry of judgment against them if the undertaking was not filed within the time fixed. They dispute the fact that such consent was given by them, but they did not move to resettle the order. The two defendants were represented by different attorneys, and each relied upon the other to procure and file the undertaking; the result was that neither filed it and judgment was entered on the order just referred to. Immediately they moved to vacate it, ar 1 the reasons of the neglect were set forth by .affidavit. On that motion an undertaking was offered executed by a surety company binding itself “ that, if the judgment was vacated, and if upon a trial thereafter the plaintiffs prevailed, said surety company would pay said judgment or cause the same to be paid not exceeding the amount claimed in the complaint with interest and costs, to wit, $845.23, and such further costs as may be added thereto.” No Trial Term was then in session, and plaintiffs were amply protected by the undertaking which defendants were ready and willing to give. The motion was denied. We think it should have been granted. The fault originally rested with plaintiffs. But for their stay, which resulted in a delay of eight days before their motion to sever was disposed of, the action could and probably would have been disposed of. Meantime the witnesses for the defendants, without fault on their part, separated and two of them could not be procured in the short time within which it was necessary to act. We think, in view of the summary manner in which the action was restored to the calendar, that justice would be better served by giving the defendants their day in court, to the end that their defense may be heard and disposed of on the merits. The defendants, however, .should pay, as a condition of the favor, a trial fee of thirty dollars, a term fee of ten dollars, for opposing the motion ten dollars, and all plaintiffs’ disbursements in talcing the inquest and entering judgment (Marchesini v. Scaccianoce, 110 App. Div. 130) ; the undertaking to be served and filed, or, if upon examination it shall be found that it does not fully protect the plaintiffs, a new one must be executed by a surety com- ' pany within ten days.

The order should be reversed and the motion granted upon complying with the terms indicated within ten days after service of a copy of the order. If terms are not complied with, motion denied, with ten dollars costs. Ho costs of appeal.

Present: Gildersleeve, Leventritt and Erlanger, JJ.

Order reversed and motion granted upon terms within ten days after service of copy of order' If terms are not complied with, motion denied, with ten dollars costs.  